Smt.Malamma vs Harijana Gangappa
2021 Latest Caselaw 1667 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 1ST DAY OF MARCH 2021

                            BEFORE

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

       Writ Petition No.105343 OF 2016 (GM-CPC)

Between

1. Smt. Malamma,
   W/o Balappa,
   Aged about 59 years,
   Occ: Agriculturist,
   R/o. Bandralu village,
   Tq: Siruguppa,
   Dist: Ballari.

2. Dodda mallaiah,
   S/o Ballappa,
   Aged about 36 years,
   Occ: Agriculturist,
   R/o. Bandralu village,
   Tq: Siruguppa,
   Dist: Ballari.                                 ...Petitioners

(By Sri. Mallikarjunswamy B.Hiremath, Advocate)


And

1. Harijana Gangappa,
   S/o Sonati Thayappa,
   Aged about 67 years,
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  Occ: Agriculturist,
  R/o. Bandralu village,
  Tq: Siruguppa,
  Dist: Ballari.

2. Harijana Shivappa,
   S/o Pakkeerappa,
   Aged about 49 years,
   Occ: Agriculturist,
   R/o. Bandralu village,
   Tq: Siruguppa,
   Dist: Ballari.

3. The Deputy Commissioner,
   Ballari.

4. The Tahsildar,
   Siruguppa.                                             ...Respondents

(By Sri. Gode Nagaraj, Advocate for R1 and R2
    Sri. Vinayak S.Kulkarni, AGA for R3 and R4)


        This Writ Petition is filed under Articles 226 & 227 of the
Constitution    of   India   praying   to   quash   the    order   dated
04.04.2016 on I.A. No.13 at annexure-H passed by the Civil
Judge     and   JMFC,    Siruguppa     in   O.S.    No.109/2012     and
consequently allow I.A. No.13; and alternatively issue a writ of
certiorari quashing the order dated 05.02.2016 on I.A. No.12
passed by the Civil Judge and JMFC, Siruguppa vide Annexure-C
in O.S. No.109/2012 and consequently allow I.A. No.12.


        This Writ Petition coming on for Preliminary Hearing in 'B'
Group this day, the Court made the following:
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                                ORDER

Petitioners have invoked writ jurisdiction Article 227 of the

Constitution of India challenging order dated 04.04.2016 passed

by the Civil Judge & JMFC, Siruguppa, on I.A. No.13 in O.S.

No.109 of 2012.

2. Plaintiffs have filed this writ petition. Plaintiffs

claiming to be in possession of suit schedule land by virtue of

agreement of sale dated 27.04.1990 executed by

defendants/respondents filed O.S. No.109 of 2012 for permanent

injunction. Plaintiffs filed an application under Order XXVI Rule

10-A for appointment of Commissioner to examine the validity of

thumb impression of the defendants. The said application came

to be rejected on 05.02.2016. In the said order, it was observed

that plaintiffs, without seeking the relief of specific performance

of the contract, had filed the suit for a bare injunction. Thus,

plaintiffs were compelled to file an application under Order XXIII

Rule 1(3)(a) of CPC to permit the plaintiffs to withdraw the

present suit however, reserving liberty to file a comprehensive

suit for specific performance on the same cause of action. The

Trial Court rejected the said application on the ground that the

present application was filed at the fag end of the trial, and if the

application was to be allowed, it may lead to fresh round of

litigation among the parties. Taking exception to the same, this

writ petition is filed.

3. Learned counsel for the petitioners would submit

that the application under Order XXIII Rule 1(3) of CPC to

withdraw the present suit and file fresh suit was filed by the

plaintiffs on the ground that the present suit for bare injunction,

without seeking the relief of specific performance of the contract,

may not be maintainable. He submits that the Trial Court

committed an error in rejecting the said application since Order

XXIII Rule 1(3)(a) provides for allowing the plaintiff to withdraw

the suit and file a fresh suit. Hence, he submits that the

impugned order passed by the Trial Court may be set aside.

4. Learned counsel for the defendants/respondents

submits that the Trial Court has rightly dismissed the application

on the ground that the application was filed at a belated stage

and if permission to withdraw the suit and file a fresh suit was

granted, it may lead to fresh round of litigation among parties.

5. I have examined the submissions of the learned

counsel for the parties.

6. It is not in dispute that the plaintiffs filed suit for

permanent injunction based on the agreement of sale alleged to

have been executed by the defendants. The plaintiffs' application

for appointment of a Commissioner was rejected and in the said

order, it was observed that the plaintiffs have filed suit for bare

permanent injunction without seeking the relief of specific

performance of the agreement, which compelled the plaintiffs to

file an application under Order XXIII Rule 1(3)(a) of CPC. Sub-

rule (3)(a) of Rule 1 of Order XXIII of CPC reads as follows:

"1. Withdrawal of suit or abandonment of part of claim. - (1) x x x x x xx (2) x x x x x (3) Where the Court is satisfied, -

            (a) that a suit must fail by reason of some
                formal defect, or





            (b)    that there are sufficient grounds for

allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim"

A bare reading of Order XXIII Rule 1(3) of CPC would indicate

that the plaintiff may maintain an application for withdrawing the

suit reserving liberty to file a fresh suit on the same cause of

action, if the plaintiff notices that the suit would fail by reason of

some formal defect. In the instant case, the plaintiffs have

sought for permission to withdraw the present suit and file a

fresh suit on the same cause of action on the ground that the

present suit for permanent injunction may not be maintainable

for not seeking the relief of specific performance of the contract.

7. The Trial Court contrary to Order XXIII Rule 1(3)(a)

of CPC has dismissed the application - I.A. No.13. Hence, the

impugned order passed by the Trial Court is not sustainable in

law.

8. Learned counsel for the defendants/respondents has

relied on the decision of this Court in the case of

Smt. Jayalakshmamma Vs. Mohan Patel and Others

reported in 2013(2) Kar.L.J. 180, wherein, in para 5 of the

judgment, it is held that, if the plaintiff finds that the evidence

adduced by him or evidence adduced by other parties would not

suit him, that cannot be a ground for him to seek permission to

withdraw the suit with liberty to institute fresh suit on the same

subject-matter or part thereof.

9. In the instant case, the plaintiffs have sought for

permission to withdraw the present suit and file a fresh suit as

the present suit may not be maintainable for not seeking the

relief of specific performance of the contract. Hence, the decision

relied upon by the learned counsel for the

defendants/respondents is not applicable to the fact of the

present case.

10. In the result, the writ petition is allowed. The

impugned order dated 04.04.2016 passed on I.A. No.13 in O.S.

No.109 of 2012, by the Civil Judge and JMFC, Siruguppa, is set

aside. Consequently, I.A. No.13 filed in O.S. No.109 of 2012 is

allowed. Plaintiffs are permitted to withdraw the present suit and

file a fresh suit in accordance with law.

All contentions including the question of limitation are kept

open.

Sd/-

JUDGE Kms