K N Nagabhushan vs B Venkatamma
2022 Latest Caselaw 3872 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 7TH DAY OF MARCH, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.F.A.NO.764 OF 2020 (INJ)

BETWEEN:

K N NAGABHUSHAN
S/O LATE K N NARAYAN SWAMY
AGED ABOUT 59 YEARS,
RESIDING AT NO.495, 19TH MAIN,
4TH T-BLOCK, JAYANAGAR,
BANGALORE-560 041.

                                               ...APPELLANT

(BY SRI MURALIDARA R, ADVOCATE)

AND:

1. SMT. B. VENKATAMMA
W/O LATE N RAMAIAH
AGED ABOUT 95 YEARS,
RESIDING IN PORTION OF NO.149
9TH MAIN, 6TH SECTOR, HSR LAYOUT,
BANGALORE-560102.

2. SMT. NIRMALA
W/O LATE VEERAPPA
AGED ABOUT 71 YEARS
RESIDING AT NO.1, PANDURANGA NILAYA,
1ST MAIN ROAD, 2ND CROSS,
GORAGUNTEPALYA, BANGALORE-560022.
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3. SMT. VIJAYA LAKSHMI
WIFE OF SHIVASHANKAR
AGED ABOUT 66 YEARS,
RESIDING AT NO.884/N-3
A CROSS, 4TH MAIN, HAL 3RD STAGE,
BANGALORE-560 075.

4. SMT. PADMINI
WIFE OF VENKATESH
AGED ABOUT 63 YEARS
RESIDING AT NO.65, 4TH CROSS
1ST MAIN ROAD, MUNIGURAPPA LAYOUT
AMRUTHAHALLI, BANGALORE-560 092.

5. SRI.P B SRINIVAS BABU
SON OF VENKATACHALAPATHY N
AGED ABOUT 58 YEARS
RESIDING AT NO.149, HSR LAYOUT,
6TH SECTOR, BANGALORE-560 102.

                                             ...RESPONDENTS

(BY SRI VIVEKANANDA H.S., ADVOCATE FOR R1 TO R4;
SRI K. RAGHAVENDRA, ADVOCATE FOR R5)

     THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT   AND    DECREE   DATED    14.01.2020   PASSED   IN
O.S.NO.874/2016 ON THE FILE OF THE XIX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, CITY, DISMISSING THE
SUIT FOR PERMANENT INJUNCTION.



     THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                           JUDGMENT

Learned counsel appearing for the appellant has filed a

memo reporting death of respondent No.1. At the same time,

the appellant has also filed an application in I.A.No.1/2021

seeking permission to withdraw the suit in O.S.No.874/2016

reserving liberty to file a fresh suit for declaration. The said

application is strongly resisted by learned counsel appearing

for the respondent Nos.1 to 4.

2. Shri H.S.Vivekananda, learned counsel would

vehemently argue and contend that bare suit for injunction

filed by the appellant herein is dismissed on merits and

therefore, he is not entitled to any liberty to withdraw the suit

which is dismissed on merits and a further liberty cannot be

granted to file a fresh suit.

3. However, this argument is countered by the

learned counsel appearing for the appellant. To support his

contention seeking liberty to file a fresh suit, learned counsel

for the appellant would straight away take this Court to

paragraph 35 of the judgment. Referring to the said findings

and observations recorded by the Trial Court, he would submit

to this Court that there is no adjudication on Will. On the

contrary, he would submit to this Court that the Trial Court

has proceeded to dismiss the suit on the ground that the suit

itself is premature as the Will cannot be given effect to during

the lifetime of defendant No.1. The present application is filed

on account of death of defendant No.1. Therefore, he would

submit that there is fresh cause of action and therefore, is

entitled to seek liberty to file a fresh suit.

4. At this juncture, learned counsel appearing for

respondent Nos.1 to 4 would submit to this Court that the

appellant cannot maintain a fresh comprehensive suit on the

same cause of action. If there is a fresh cause of action and if

the law permits, it is open for him to take recourse to the

remedy that is available to him.

5. I find some force in the submission made by the

learned counsel for respondent Nos.1 to 4. If the material on

record are examined, I am of the view that the

appellant/plaintiff cannot maintain a fresh suit on the same

cause of action. However, I equally find some force in the

submission made by the learned counsel for the appellant

which is evident from paragraph 35 of the judgment of the

Trial Court which is under challenge.

6. On perusal of the material on record, I would find

that the genuineness and due execution of Will is not at all

adjudicated in the suit which is under challenge. The question

was only in regard to dispute as to who is in lawful possession

and therefore, it appears that the appellant/plaintiff cannot

maintain a fresh suit on the same cause of action.

7. It is brought to the notice of this Court that the

present suit is filed only to injunct the respondent from

alienating the suit schedule property. The emphasis on which

the suit is dismissed is that during the lifetime of defendant

No.1, there was no cause of action to file the present suit.

Now a memo is filed reporting death of defendant No.1.

Therefore, this Court has to accept the contention of the

appellant that there is a fresh cause of action. If there is a

fresh cause of action on account of death of defendant No.1, it

is open for the appellant to seek appropriate remedy basing

his claim on the cause of action that has accrued to him during

the pendency of this appeal.

8. I have meticulously examined the averments made

in the affidavit filed in support of I.A.No.1/2021. Since the

appellant has specifically stated in paragraph 4 of the affidavit

that there is a fresh cause of action, I am of the view that this

is a fit case to exercise discretion and grant leave as

envisaged in sub-Rule (3) of Rule 1 of Order XXIII of CPC.

9. With these observations, I.A.No.1/2021 is allowed

reserving liberty to the appellant to take recourse to the

remedy available to him by basing cause of action on account

of death of defendant No.1. The appellant is permitted to

withdraw the suit in O.S.No.874/2016. Consequently, appeal

stands dismissed.

The pending interlocutory application, if any, does not

survive for consideration and stands disposed of accordingly.

Sd/-

JUDGE

CA