Khatunabi vs Imam Husen
2021 Latest Caselaw 1675 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

          DATED THIS THE 2ND DAY OF MARCH, 2021

                          BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  C.R.P.NO.100111/2016

BETWEEN

1 . KHATUNABI
W/O ISMAILSAB KHAJI,
AGE: 60 YEARS,

2 . MOHAMAD SALEEM
S/O ISMAILSAB KHAJI,
AGE: 43 YEARS, OCC: SERVICE,

3 . MOHAMAD IBRAHIM
S/O ISMAILSAB KHAJI,
AGE: 38 YEARS, OCC: BUSINESS,

4 . MOHAMAD HASHIM
S/O ISMAILSAB KHAJI,
AGE: 35 YEARS, OCC: BUSINESS,

5 . KHOUSAR
W/O SAYYAD SALEEM KHAJI,
AGE: 33 YEARS, OCC: HOUSE HOLD WORK,
R/O: KHAJIBUDIHAL,
NOW AT KALLIMANI ONI,
KERUR, TQ: BADAMI,
DIST: BAGALKOTE.

6 . ABDUL REHAMAN
S/O ISMAILSAB KHAJI,
AGE: 30 YEARS, OCC: BUSINESS,

7 . MOHAMAD JAMEEL
S/O ISMAILSAB KHAJI,
AGE: 28 YEARS, OCC: BUSINESS,
                                      2




8 . MOHAMMAD MUSTAK
S/O ISMAILSAB KHAJI,
AGE: 26 YEARS, OCC: BUSINESS,

9 . MOHAMMAD FIROZ
S/O ISMAILSAB KHAJI,
AGE: 24 YEARS, OCC: BUSINESS,

All ARE R/O: KALLIMANI ONI,
KERUR, TQ: BADAMI,
DIST: BAGALKOTE.
                                                        ...PETITIONERS
(BY SRI.K L PATIL & SRI.S.S.BETURMATH, ADVS.)

AND

IMAM HUSEN
S/O BANDAGISAB KALLIMANI,
AGE: 53 YEARS,
OCC: AGRICULTURE AND BUSINESS
R/O: KALLIMANI ONI,
KERUR, TQ: BADAMI,
DIST: BAGALKOTE.
                                                         ...RESPONDENT

(BY SRI.S.B.HEBBALLI & SRI.S.C.HIREMATH, ADV.S)


       THIS CRP IS FILED UNDER SEC.115 OF CPC, 1908, AGAINST
THE ORDER DATED:16.11.2016 PASSED IN O.S.NO.80/2008 ON THE
FILE   OF   THE   PRINCIPAL    CIVIL     JUDGE    AND   JMFC,   BADAMI,
DISMISSING THE I.A.NO.XIV FILED U/O.23 RULE 1 R/W SEC.151 OF
CPC. AND ETC.



       THIS CIVIL REVISION PETITION COMING ON FOR HEARING-
INTERLOCUTORY      APPLN,     THIS   DAY,   THE    COURT    MADE   THE
FOLLOWING:
                                    3




                              : ORDER :

This Civil Revision Petition is filed by the

plaintiffs/petitioners assailing the correctness of the

order passed by the Court below on IA No.XIV filed

under Order 23 R ule 1 R /W Section 151 of CPC.

2. The facts leading to the case are as under:

It is the case of the present petitioners that their

father filed a suit against the defendants for the relief

of declaration and perpetual injunction in respect of

agricultural land bearing R.S.No.181/2A measuring 25

guntas. The case of the original plaintiff is that after

introduction of Karnataka Land Reforms (Amendment)

Act, the father of the petitioners herein along with

father of the respondents jointly filed Form No.7. The

Land Tribunal on enquiry, granted Occupancy R ights.

Original plaintiffs also contended that 10 guntas of land

was acquired by the Government and remaining portion

of the land measuring 1 acre 15 guntas was numbered

as R.S.No.181/1A+1B+2+3/3. However, the father of

the petitioners filed a suit by describing the suit

schedule property as R .S.No.181/2A. During the

pendency of the suit, the father of the present

petitioners died and present petitioners was brought on

record as legal representatives. The present petitioners

as well as respondents to substantiate their respective

contentions led in oral and documentary evidence.

When the matter was set in for arguments, the present

petitioners filed an amendment application seeking

correction of description of the suit land. The present

respondents resisted the amendment application.

Learned Judge rejected the amendment application filed

by the present petitioners.

3. The present petitioner being aggrieved by the

order, preferred writ petition before this Court

challenging the order of the Trial Court passed on IA

No.13 which was filed for seeking amendment of

description of suit property. The Court dismissed the

said writ petition on the ground that amendment was

not sought by exercising due diligence and there is

inordinate delay in seeking amendment.

4. In this background, the present petitioners have

filed the present application in IA No.XIV under Order

23 Rule 1 R/W Section 151 of CPC seeking withdrawal of

the suit with a liberty to file fresh suit on the same

cause of action. The said application was again

strongly resisted by the respondents. The Trial Court

has rejected the application on the ground that at this

stage if application is allowed, great injustice would be

caused to the respondents/defendants. The said order

is under challenge before this Court.

5. Learned counsel appearing for the petitioners

vehemently argued and contended before this Court

that the description was wrongly stated in the plaint

and unless description of the suit land is corrected, the

plaintiffs/petitioners cannot proceed with the suit. He

further submits that since there is a formal defect and

such defect goes to the root of the case and it is also

necessary for determining the real controversies

between the parties, the learned Judge ought to have

allowed the application. He submits that the said order

suffers from illegality and material irregularities.

Unless, the defect is removed, the petitioners may not

succeed in getting appropriate relief from the Court.

He submits that the order under challenge needs to be

interfered by this Court.

6. To buttress his arguments, he has relied upon the

judgment in the case of Chikkamadaiah V/s

Smt.Ningamma and others, reported in

2018(1)KCCR 299.

7. Per contra, repelling the contentions raised by the

petitioners, learned counsel appearing for respondents

submits that both the parties have led in evidence and

at a belated stage, the application is filed. In this

background, he submits that the petitioners cannot be

permitted to withdraw the suit reserving liberty to file

suit afresh.

8. He would also take this Court to Order 23 Rule 2

of CPC and contend that even if fresh suit is filed, the

same would be subject to law of limitation and prays

that this Court cannot be permit the petitioners to

agitate their rights by second round of litigation and the

same would cause inconvenience and hardship to the

respondents.

9. I have perused the material on record. On

perusal of the plaint, at para No.3, petitioners have

described the property as R.S.No.181/2A total

measuring 1 acre 25 gunts.

10. It is specifically contended by the petitioners that

an extent of 10 guntas was acquired by the Government

and after acquisition, the land which was granted to the

present petitioners was renumbered as

181/1A+1B+2+3/3. But, however, by oversight, while

filing the suit, petitioners had described the suit land as

R.S.No.181/2A. On examining this particular aspect, I

am of the view that there is a formal defect and unless

this defect is cured, it would be futile exercise in

prosecuting the suit. From the records, it is also

forthcoming that petitioners did take steps in seeking

amendment of description of the suit property.

However, the said amendment application was rejected

and confirmed by this Court in W.P.No.106343/2016.

Since, amendment application was rejected and

confirmed by this Court, I find that petitioners are left

remedy less. Unless, the description of the suit

property is corrected, the petitioners cannot prosecute

the suit and even if they succeed in getting a decree,

the same would be a paper decree and would not create

any right in favour of the present petitioners.

11. In that view of the matter, I am of the view that

petitioners have to be reserved with liberty to file a suit

afresh on the same cause of action. The reasons

assigned by the learned Judge that the suit is of the

year 2008 and the present application is filed only when

the matter was set in for arguments and as such

application cannot be allowed is palpably erroneous. It

appears that learned Judge has laid emphasis on delay

in filing the application. What was required to be

examined by the Court was since amendment

application seeking for correction of description of the

suit property was rejected, the present petitioners have

no alternative remedy then seeking withdrawal of the

suit.

12. The present case on hand squarely falls under the

provisions of Order 23 Rule 1(3)(a) of CPC. This Court

is of the view that, if defect is not cured, the suit would

fail. In that view of the matter, the captioned revision

deserves to be allowed.

13. The counsel for the respondent has contended

before this Court that in the event, petitioners opts to

file a suit on the same cause of action, the same would

be governed by the provisions of Order 23 Rule 2 of

CPC. Such a defence is available to the defendant,

however, such defence has to be examined by the Court

by taking note of the provisions of Section 14(3) and

explanation to Clause (a) of the L imitation Act, 1963.

14. For the reasons stated above, Civil Revision

Petition is allowed. The order passed by the learned

Judge on IA No.XIV is set aside and the prayer sought

in application IA NO.X IV is allowed permitting the

petitioners to withdraw the suit reserving liberty to the

petitioners to file a suit afresh.

15. It is needless to say that all defences are

available to respondent in the event, petitioners file a

fresh suit.

Sd/-

JUDGE H MB /-