Sri Muniyappa Since Deceased vs Sri Muniyappa S/O Late Munivenkatappa ...
2023 Latest Caselaw 10929 Kant

Karnataka High Court

Sri Muniyappa Since Deceased vs Sri Muniyappa S/O Late Munivenkatappa ... on 18 December, 2023

Author: V Srishananda

Bench: V Srishananda

                                            -1-
                                                     NC: 2023:KHC:46069
                                                    RFA No. 355 of 2015




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 18TH DAY OF DECEMBER, 2023

                                       BEFORE
                      THE HON'BLE MR JUSTICE V SRISHANANDA
                    REGULAR FIRST APPEAL NO. 355 OF 2015 (INJ)
              BETWEEN:

              1.      SRI. MUNIYAPPA,
                      SINCE DECEASED
                      REPRESENTED BY HIS LR'S,

              1(A). SMT. THULASI,
                    W/O LATE MUNIYAPPA,
                    AGED ABOUT 48 YEARS,

              1(B). SMT. JAYASHRI,
                    D/O LATE MUNIYAPPA,
                    AGED ABOUT 24 YEARS,

              1(C). SRI. M. GOPI,
                    S/O LATE MUNIYAPPA,
                    AGED ABOUT 22 YEARS,
Digitally
signed by R           ALL ARE RESIDING AT
MANJUNATHA
Location:             NO.29, DOOPANAHALLI,
HIGH COURT
OF                    HAL 2ND STAGE, INDIRANAGAR,
KARNATAKA
                      BANGALORE - 560 008.

              2.      SRI. YELLAPPA,
                      S/O SRI. MUNICHINNAPPA,
                      AGED ABOUT 44 YEARS,
                      RESIDING AT NO.29,
                      DOOPANAHALLI, HAL 2ND STAGE,
                      INDIRANAGAR, BANGALORE - 560 008.
                                                          ...APPELLANTS
              (SRI. NAIK N. R., ADVOCATE)
                             -2-
                                      NC: 2023:KHC:46069
                                     RFA No. 355 of 2015




AND:

     SRI. MUNIYAPPA,
     S/O LATE. MUNIVENKATAPPA,
     SINCE DECEASED REPRESENTED
     BY HIS LR'S.

1.   SMT. PARVATHAMMA,
     W/O LATE MUNIYAPPA,
     AGED ABOUT 75 YEARS,

2.   SRI. MUNIKRISHNA,
     S/O LATE. MUNIYAPPA,
     AGED ABOUT 58 YEARS,

3.   SRI. SRIMURTHY,
     S/O LATE MUNIYAPPA,
     AGED ABOUT 56 YEARS,

4.   SRI. ARAVIND,
     S/O LATE MUNIYAPPA,
     AGED ABOUT 52 YEARS,

5.   SRI. SRINIVAS,
     S/O LATE MUNIYAPPA,
     AGED ABOUT 49 YEARS,

6.   SRI. SURESH,
     S/O LATE MUNIYAPPA,
     AGED ABOUT 45 YEARS,

     ALL ARE RESIDING AT
     NO.23, DOOPANAHALLI,
     HAL 2ND STAGE, INDIRANAGAR,
     BANGALORE - 560 008.
                                         ...RESPONDENTS
(BY SRI. M. D. BASAVANNA., ADVOCATE FOR R2, R4 TO R6;
    VIDE ORDER DATED 22.09.2023, NOTICE TO R1 AND R3
    IS H/S)
                               -3-
                                               NC: 2023:KHC:46069
                                           RFA No. 355 of 2015




     THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.12.2014 PASSED IN
O.S.NO.4398/2006 ON THE FILE OF THE XVIII ADDL.CITY
CIVIL JUDGE AT BENGALURU CITY (CCH-NO.10), DECREEING
THE SUIT FOR PERMANENT INJUNCTION.

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

                        JUDGMENT

I.A.No.1/2023 is filed under Order XXIII Rule 1(3)(a)

and (b) of CPC seeking permission to withdraw the above

appeal and file a fresh suit on the same cause of action.

Application is supported by the affidavit.

2. Sri.M.D.Basavanna, learned counsel for the

contesting respondent Nos.2, 4 to 6 opposes the

application on the ground that the permission cannot be

granted, as the intended suit would be barred by

limitation.

3. Taking note of the contents of the affidavit in

support of the application and also on perusal of the

material on record, this Court is satisfied that the suit

would fail on the ground of technicalities and not on the

NC: 2023:KHC:46069

merits. Therefore, a case is made for withdrawal of the

suit and file a fresh suit on the same cause of action.

4. Needless to emphasize that all the contentions

including the question of limitation would be kept open to

the contesting respondents. If any such suit is filed, trial

Court is required to consider the same in accordance with

law including the question of limitation. With these

observations, following:

ORDER.

           i.     I.A.No.1/2023 is allowed.

       ii.        Appellant/plaintiff is permitted to withdraw

                  the suit and file a fresh suit.

       iii.       It is made clear that all the contentions are

kept open to be urged by the contesting

respondents including the question of

limitation.

Sd/-

JUDGE KAV