Karnataka High Court
Smt. Narayanamma vs H. V. Renukadevi on 24 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.45698 OF 2019 (GM-CPC)
BETWEEN
SMT. NARAYANAMMA
W/O LATE RAMAIAH
D/O LATE H VENKATARAYAPPA @
H V VENKATARAYAPPA
AGED 69 YEARS
R/OF BYAPPANAHALLI, JALA HOBLI
BENGALURU NORTH TALUK.
...PETITIONER
(BY SRI HANUMANTHARAYAPPA K, ADVOCATE)
AND
1. H V RENUKADEVI
W/O MUNISHAMAPPA
D/O LATE VENKATARAYAPP
AGED ABOUT 48 YEARS
2. MR. MANOHARA H M
S/O MUNISHAMAPPA
AGED ABOUT 27 YEARS
BOTH ARE R/OF KRISHNAMMANA HOSUR
JANGAMAKOTE HOBLI
SHIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT.
3. SMT. GAYATHRI
D/O MUNNAJ RAO
AGED 49 YEARS
2
4. SRI R RAMU
S/O A M RAJU PILLA
AGED 53 YEARS
5. SRI ABHILASH
S/O R RAMU
AGED 30 YEARS
6. SRI AVINASH
S/O R RAMU
AGED 27 YEARS
RESPONDENT NOS. 3 TO 6
ARE R/AT NO.2, 3RD CROSS
BHARATHI LAYOUT, S G PALYA
DRC POST,
BENGALURU-560 029.
7. M/S SANKESHWAR ASSOCATES(JKC)
NO.26, CSI COMPOUND
2ND CROSS, NEW MISSON ROAD
BEHIND UNITY BUILDNGS
BENGALURU-560 002.
REPRESENTED BY ITS PARTNER
MR. RAKESH JAIN
S/O BHAWARAL JAIN
AGE 37 YEARS
R/AT NO.123, BEHIND ANOMOL
APARTMENTS, OPO. SHOBHA HOSPITAL
NAGARABHAVI MAIN ROAD
BENGALURU-560 040.
....RESPONDENTS
(BY SRI M V NAVEEN REDDY, ADVOCATE FOR R1 AND 2;
NOTICE TO R3 TO 6 IS DISPENSED WITH;
NOTICE TO R7 SERVED BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 29TH AUGUST, 2019 PASSED BY THE LEARNED SENIOR
3
CIVIL JUDGE, AT SHIDLAGHATTA ON IA.NO.14 IN ORIGINAL SUIT
NO.NO.61 OF 2015 ANNEXURE - F ON HIS FILE AND ALLOW THE
APPLICATION AS PRAYED FOR BY ALLOWING THIS WRIT PETITION.
THIS PETITION COMING ON FOR PRELMINARY HEARING N 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the plaintiff in Original Suit
No.61 of 2015 on the file of the Senior Civil Judge and JMFC,
Shidlaghatta, challenging the order dated 20th August, 2019
dismissing IA.14 filed by the plaintiff.
2. The undisputed facts of the case are that the plaintiff
has filed suit for partition and separate possession with respect
to the suit schedule property. Defendants contested the matter
by filing the written statement and during the proceedings, the
plaintiff has filed IA.14 under Order XXIII Rule 1 read with
Section 151 of the Code of Civil Procedure to withdraw the suit,
with liberty to file fresh suit on the same cause of action as there
is serious technical defects in the pleadings and the plaint. The
said application was resisted by the defendants. The trial Court,
after considering the material on record, by the impugned order
dated 28th August, 2016 dismissed IA.14. Feeling aggrieved by
the same, the plaintiff has preferred this writ petition.
3. I have heard Sri G. Hanumantharayappa, learned
counsel appearing for the petitioner and Sri M.V. Naveen Reddy,
learned counsel appearing for the respondents 1 and 2.
4. Sri Hanuamantharayappa, learned counsel appearing
for the petitioner, invited the attention of the court to
paragraphs 3 and 4 of the affidavit accompanying the application
in IA.14 (Annexure-D) and submitted that there is a formal
defect in the filing of the plaint and therefore, the same has to
be rectified. He further contended that since the suit is filing
seeking relief of partition and separate possession, no prejudice
would be caused to the respondents/defendants in the event
liberty is reserved to the plaintiff to file fresh suit with same
cause of action.
5. Per contra Sri M.V. Naveen Reddy, learned counsel
appearing for the respondents sought to justify the impugned
order passed by the trial Court. He further contended that there
is no "formal defect" as alleged by the plaintiff and therefore,
sought to justify the impugned order. He also referred to the
judgment of the Hon'ble Supreme Court in the case of
BAKHTAWAR SINGH AND ANOTHER v. SADA KAUR AND
ANOTHER reported in AIR 1996 SC 3488 and submitted that the
impugned order passed by the trial Court is just and proper and
does not call for any interference in this petition.
6. In the light of the submissions made by the learned
counsel appearing for the parties, it is not in dispute that the
relief sought for by the plaintiff is for partition and separate
possession with respect to the suit schedule property. The
grievance of the plaintiff is that there is formal defect in the
plaint. In order to ascertain the same, I have carefully
considered paragraphs 3 and 4 in the affidavit accompanying the
application at (Annexure-D). Referring to paragraph 3 of the
application, I am of the view that the contentions raised by the
plaintiff comes within the purview of "formal defect" in the plaint
and considering the law declared by the Hon'ble Apex Court in
the case of V. RAJENDRA AND ANOTHER v. ANNASWAMY
PANDIAN (DEAD THROUGH LEGAL REPRESENTATIVE)
KARTHYAYANI NATCHIAR reported in (2017)5 SCC 63, and
accordingly, the impugned order passed by the trial Court is
liable to be set aside permitting the plaintiff to withdraw the suit
with liberty to file fresh suit on the same cause of action.
However, I find force in the submission of the learned counsel
appearing for the respondents that the said application has been
filed at the belated stage when the matter is posted for cross-
examination of defendant and taking into the consideration the
argument advanced by the learned counsel for the respondents,
in my considered view, the respondents are required to be
compensated. In that view of the matter, writ petition is allowed
by imposing cost of Rs.5,000/- to be payable by the plaintiff to
respondents No.1 and 2 herein. Writ petition is accordingly
allowed.
Sd/-
JUDGE
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