Karnataka High Court
Doddathimmaiah Dead By Lrs vs Chikkalingamma Dead By Lrs on 19 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:46425
WP No. 2979 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 2979 OF 2023 (GM-CPC)
BETWEEN:
DODDATHIMMAIAH DEAD BY LRS
1. LAKSHMAMMA,
W/O LATE DODDATHIMMAIAH,
AGED ABOUT 55 YEARS,
2. SAROJAMMA,
D/O LATE DODDATHIMMAIAH,
AGED ABOUT 55 YEARS,
3. PRAKASHA D,
S/O LATE DODDATHIMMAIAH,
AGED ABOUT 31 YEARS,
Digitally 1 TO 3 ARE R/AT YALADADLU VILLAGE,
signed by
SUCHITRA M J HALDODDERI POST, KORA HOBLI,
Location: High
Court of TUMAKURU TALUK.
Karnataka
SANNAIAH DEAD BY HIS LRS
4. JAYAMMA,
W/O LATE SANNAIAH,
AGED ABOUT 55 YEARS,
5. NARAYANAPPA,
S/O LATE SANNAIAH,
AGED ABOUT42 YEARS,
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WP No. 2979 of 2023
6. RANGADHAMAIAH,
S/O LATE SANNAIAH,
AGED ABOUT 38 YEARS,
4 TO 6 ARE R/AT YALADADLU VILLAGE,
HALADODDERI POST, KORA HOBLI,
TUMAKURU TALUK.
...PETITIONERS
(BY SRI. AMAR GOWDA K.S., ADVOCATE FOR
SRI. D.M.MANJUNATH, ADVOCATE)
AND:
CHIKKALINGAMMA
DEAD BY LRS
1. THIMMAKKA,
W/O LATE CHIKKALINGAMMA,
AGED ABOUT 55 YEARS,
R/AT SOMASAGARA VILLAGE,
NELAHAL POST, BELLAVI HOBLI,
TUMAKURU TALUK.
C/O NAGARAJU,
YALADADLU VILLAGE,
KORA HOBLI,
TUMAKURU TALUK.
2. MANJAMMA,
W/O NAGARAJU,
D/O LATE CHIKKALINGAMMA,
AGED ABOUT 42 YEARS,
R/AT CHIKKADASARAHALLI,
KATAVEERANAHALLI POST,
KALLAMBELLA HOBLI,
SIRA TALUK,
TUMAKURU DISTRICT.
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WP No. 2979 of 2023
RANGANNA DEAD BY HIS LRS
3. GANGAMMA,
W/O LATE RANGANNA,
AGED ABOUT 49 YEARS,
4. MAMATHA,
W/O GANGARAJU,
D/O LATE RANGANNA,
AGED ABOUT 29 YEARS,
3 AND 4 ARE R/AT KUNDURU,
DEVARAYAPATNA POST,
TUMAKURU TALUK.
5. CHIKKATHIMMAIAH,
S/O LATE THIMMAIAH,
AGED ABOUT 44 YEARS,
6. NAGARAJU,
S/O LATE THIMMAIAH,
AGED ABOUT 40 YEARS,
7. LAKSHMANA,
S/O LATE THIMMAIAH,
AGED ABOUT 34 YEARS,
5 TO 7 ARE R/AT YALADADLU VILLAGE,
HALADODDERI POST, KORA HOBLI,
TUMAKURU TALUK.
SIDDAMMA DEAD BY LRS
8. THIMMAKKA,
W/O POOJARI SIDDAPPA,
D/O SIDDAMMA,
AGED ABOUT 65 YEARS,
R/AT MOOGANAHALLI,
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GULIGENAHALLI POST,
KASABA HOBLI, SIRA TALUK,
TUMAKURU DISTRICT.
9. DODDAIAH,
S/O HOTTE THIMMAIAH,
AGED ABOUT 55 YEARS,
R/AT YALADALU VILLAGE,
HALADOODERI POST,
KORA HOBLI,
TUMAKURU TALUK.
...RESPONDENTS
(BY SRI. SUBRAMANYA PRASAD T V., ADVOCATE
FOR R1 TO R7;
SRI. NARASIMHARAJU, ADVOCATE FOR R9;
R8 - SERVED AND UNREPRESENTED)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
VIDE ANNEXURE - A DATED 12.10.2022 AND ALLOW THE
PETITIONERS APPLICATION UNDER 23 RULE 1 READ WITH
SECTION 151 OF CPC WITHDRAW THE SUIT WITH LIBERTY TO
FILE FRESH SUIT IN RESPECT OF SAME CAUSE OF ACTION
AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 2979 of 2023
ORDER
The petitioners, appellants in R.A.No.349/2018 on
the file of VI Additional District and Sessions Judge,
Tumakuru, are before this Court, aggrieved by order dated
12.10.2022, rejecting their application filed under Order
23 Rule 1 of the Code of Civil Procedure, 1908 (for short
'CPC') to withdraw the suit with liberty to file fresh suit.
2. Heard Sri. Amar Gowda.K.S., learned counsel
for Sri. D.M.Manjunath, learned counsel for the petitioners
and Sri. Subramanya Prasad.T.V., learned counsel for
respondent Nos.1 to 7 as well as Sri. Narasimharaju,
learned counsel for respondent No.9. Perused the writ
petition papers.
3. Learned counsel for the petitioners would
submit that the trial Court committed a grave error in
rejecting the application filed by the petitioners under
Order 23 Rule 1 of CPC to withdraw the suit pointing out
defects in the suit. Learned counsel referring to above
provision would submit that when the plaintiffs point out
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defect in the plaint, the Court shall permit the plaintiffs to
withdraw the suit with liberty to file fresh suit. It is further
submitted that the trial Court failed to exercise its
jurisdiction vested in it under Order 23 Rule 1 of CPC.
Thus, he prays for allowing the writ petition.
4. Per contra, learned counsel for the respondents
would submit that the petitioners-plaintiffs suffered
judgment and decree in O.S.No.75/2016 under judgment
and decree dated 09.10.2018. The suit of the petitioners-
plaintiffs for declaration, is rejected. The findings on the
issues are against the petitioners-plaintiffs. Hence, it is
submitted that, unless those findings are set aside, the
petitioners cannot be permitted to file fresh suit. Thus,
they justified the order passed by the trial Court.
5. Having heard the learned counsels for the
parties and on perusal of the writ petition papers, I am of
the view that no ground is made out to interfere with the
impugned order. Moreover, impugned order is neither
perverse nor suffers from any material irregularity so as to
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warrant interference under Article 227 of the Constitution
of India.
6. The suit of the petitioners-plaintiffs in
O.S.No.75/2016 for declaration and permanent injunction
was dismissed by judgment dated 09.10.2018. The issues
in the said O.S.No.75/2016 reads as follows:
"1. Whether the plaintiffs prove that they are
the absolute owners and in possession of suit
schedule property?
2. Whether the plaintiffs prove that the
defendants are interfering with the plaintiffs
peaceful possession and enjoyment of the suit
schedule property?
3. Whether plaintiffs are entitled for the reliefs
as prayed?"
7. The above issues are negatived and suit is
dismissed. Against the said judgment and decree, the
petitioners preferred R.A.No.349/2018. In the said
R.A.No.349/2018, application is filed under Order 23 Rule
1 of CPC, seeking leave to withdraw the suit with a liberty
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to file fresh suit. The Appellate Court rightly rejected the
said application observing that unless the findings against
the petitioners-plaintiffs are upset, the question of
granting liberty to file fresh suit would not arise. When
the findings on the issues referred above stare at the
petitioners-plaintiffs, the petitioners-plaintiffs would not be
in a position to file fresh suit. The Appellate Court is right
in rejecting the application.
There is no merit in the writ petition and accordingly,
writ petition stands rejected.
Sd/-
JUDGE
SMJ
