T. Thimmappa vs Sri. Bangarappa
2022 Latest Caselaw 5380 Kant

        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.48062 OF 2019 (GM-CPC)

BETWEEN

1. T THIMMAPPA
   SINCE DEAD BY HIS LRS

  1A. SRI T GOVINDAPPA
      S/O LATE THIMMAPPA
      AGED ABOUT 53 YEARS

  1B. T HANUMANTHAPPA
      S/O LATE THIMMAPPA
      AGED ABOUT 47 YEARS

  1C. SRI T JAYANNA
      S/O LATE THIMMAPPA
      AGED ABOUT 40 YEARS

  1D. SMT. T LAKSHMIDEVI
      D/O LATE THIMMAPPA
      AGED ABOUT 44 YEARS

      ALL ARE RESIDING AT
      T UPPARAHALLI VILLAGE
      TURUVANOOR HOBLI
      CHITRADURGA TALUK
                                                ...PETITIONERS

(BY SRI P N NANJA REDDY, ADVOCATE FOR P1 (A TO D))

AND

      1. SRI BANGARAPPA
         S/O IYAPPA
                                  2




         AGED ABOUT 42 YEARS
         AGRICULTURIST
         R/AT GOWDAGERE VILLAGE
         NAYAKANAHATTI HOBLI, CHALLAKERE TALUK
         CHITRADURGA DISTRICT.

      2. SRI THIPPESWAMY
         S/O B HANUMANTHAPPA
         AGED ABOUT 52 YEARS
         BUSINESS, MAHALAKSHMI TRADERS
         R/AT T UPPARAHATTY VILLAGE, JAGALUR TALUK
         CHITRADURGA DISTRICT.
                                              ....RESPONDENTS

(BY SRI K S UDAY, ADVOCATE FOR R1 AND 2 )

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
PASSED BY THE LEARNED I ADDITIONAL SENIOR CIVIL JUDGE,
CHITRADURGA IN ORIGINAL SUIT NO.82 OF 2017 DATED 11TH
FEBRUARY 2019, VIDE ANNEXURE-G.

    THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

This writ petition is filed by the plaintiff in Original Suit

No.82 of 2017 on the file of I Additional Civil Judge Senior Civil

Judge, Chitradurga, challenging the order dated 11th February,

2019 passed on IA.2 filed under Order XXIII Rule 1 of the Code

of Civil Procedure.

2. The factual matrix of the case is that, the plaintiff claims

to be absolute owner in possession of the suit schedule property

and he has filed suit for declaration and consequential relief of

cancellation of sale deed dated 05th May, 2017. The said suit

has been contested by the defendants by filing written

statement. In the meanwhile, the plaintiff has filed application

under Order XXIII Rule 1 of the Code of Civil Procedure seeking

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

cause of action and the said application was resisted by the

defendants. The trial Court, after hearing the learned counsel

appearing for the parties, by the impugned order dated 11th

February, 2019, dismissed IA.2 filed under Order XXIII Rule 1 of

the Code of Civil Procedure by the plaintiff/petitioner herein.

Being aggrieved by the same, plaintiff has preferred this writ

petition.

3. Sri P N Nanja Reddy, learned counsel appearing for the

legal representatives of petitioner/plaintiff contended that the

vendor of the plaintiff-Rudrappa filed suit against the first

defendant in Original Suit No.236 of 1994 and the said suit came

to be decreed on 04th December, 1997 and being aggrieved by

the same, the defendant No.1 has filed Regular Appeal No.108 of

2004 before the First Appellate Court which came to be

dismissed on 08th June 2005s. He further contended that the

vendor of the plaintiff-Rudrappa died on 9th January, 2007. In

the meanwhile, the first respondent herein has filed Regular

Second Appeal No.1685 of 2005 before this Court and this Court,

by judgment dated 13th January, 2012, allowed the Regular

Second Appeal and remanded the matter to the First Appellate

Court for fresh consideration. He further contended that the

legal representatives of deceased-Rudrappa were not brought on

record before the trial Court and the same has to be

incorporated in the suit to be filed after withdrawing the present

suit in Original Suit No.82 of 2017. Accordingly, he submits that

there is formal defect in the plaint.

4. Per contra, Sri K S Uday, learned counsel appearing for

the respondents, brought to the notice of the Court the pleadings

in Regular Appeal No.108 of 2004, which substantiate the fact

that the legal representatives of the deceased-Rudrappa (vendor

of the plaintiff) were brought on record and the appeal came to

be allowed in favour of defendant No.1 and therefore, the trial

Court rightly rejected the application filed by the plaintiff in IA.2.

Hence, he sought for dismissal of writ petition.

5. Heard the learned counsel appearing for the parties.

The plaintiff filed suit seeking declaration with consequential

benefit of cancellation of sale deed dated 05th May, 2007

executed by the defendant No.1 in favour of the defendant No.2.

Perusal of writ papers would indicate that the petitioner herein

has purchased 2.15 acres of land from one Rudrappa in Survey

No.75/2P1 of Turuvanur, Chitradurga Taluk and District through

registered sale deed dated 01st September, 2003. It is also

forthcoming from the writ petition that said Rudrappa-vendor of

the plaintiff, has filed suit against the defendant No.1 in Original

Suit No.236 of 1994 and the said suit came to be decreed on

04th December, 1997. The said judgment and decree passed by

the trial Court was challenged before the First Appellate Court in

Regular Appeal No.108 of 2004 and the said appeal came to be

dismissed by the First Appellate Court on 08th June 2005.

Thereafter, the first respondent therein has filed Regular Second

Appeal No.1684 of 2005 before this Court. This Court, by

judgment and decree dated 13th January, 2012 allowed the

Regular Second Appeal and as such, remanded the matter to the

First Appellate Court for fresh disposal. In the meanwhile,

Rudrappa-vendor of the plaintiff died on 09th January, 2007.

Perusal of certified copies of the documents produced by the

respondent herein would indicate that the First Appellate Court in

Regular Appeal No.108 of 2004 allowed the appeal and as such,

dismissed the suit filed by Rudrappa-vendor of the plaintiff. In

that view of the matter, since the legal representatives of the

vendor of the petitioner herein have already been brought on

record in Regular Appeal No.108 of 2004 and the same has

reached finality insofar as the rights of the respondents herein is

concerned, I do not find any material irregularity or illegality in

the impugned order passed by the trial Court. Accordingly, writ

petition is dismissed confirming the impugned order passed by

the trial Court.

Sd/-

JUDGE

lnn