Smt V Rathnakumari vs The Divisional Controller
2024 Latest Caselaw 6790 Kant

Karnataka High Court

Smt V Rathnakumari vs The Divisional Controller on 7 March, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

                                              -1-
                                                             NC: 2024:KHC:9621
                                                          RSA No. 1105 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 7TH DAY OF MARCH, 2024

                                           BEFORE
                          THE HON'BLE MR JUSTICE M.G.S. KAMAL
                        REGULAR SECOND APPEAL NO. 1105 OF 2022

                   BETWEEN:

                   SMT. V. RATHNAKUMARI,
                   W/O. K.K. VIJAYAKUMARI,
                   AGED ABOUT 62 YEARS,
                   OCC: HOUSEWIFE,
                   RESIDENT OF SANJAY COLONY,
                   BHADRAVATHI, SHIVAMOGGA DISTRICT.
                                                                  ...APPELLANT
                   (BY SRI. PRAVEENA H, ADVOCATE FOR
                        SRI. M.R. HIREMATHAD, ADVOCATE)

Digitally signed   AND:
by SUMA B N
Location: High     1.   THE DIVISIONAL CONTROLLER,
Court of                K.S.R.T.C. DAVANAGERE DIVISION,
Karnataka
                        DAVANAGERE.

                   2.   THE DEPOT MANAGER,
                        K.S.R.T.C. SHIMOGA DEPOT,
                        SHIMOGA.
                                                               ...RESPONDENTS
                        THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST
                   THE JUDGMENT AND DECREE DATED 16.03.2020 PASSED IN
                   RA.NO.49/2017 ON THE FILE OF THE ADDL. SR. CIVIL JUDGE
                   AND JMFC, BHADRAVATHI. DISMISSING THE APPEAL AND
                   CONFIRMING THE JUDGMENT AND DECREE DATED 26.07.2017
                                -2-
                                             NC: 2024:KHC:9621
                                         RSA No. 1105 of 2022




PASSED IN O.S.NO.297/2008 ON THE FILE OF THE I ADDL.
CIVIL JUDGE AND JMFC, BHADARAVATHI.

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


                          JUDGMENT

Application in I.A.No.1/2023 is filed by the appellant

under Order 23 Rule 1 (3) of the Civil Procedure Code

1908, seeking permission to withdraw the appeal/suit with

liberty to file fresh comprehensive suit on the same cause

of action.

2. Learned counsel for the appellant has produced

copy of the judgment dated 07.11.2023 in Regular Second

Appeal No.2032/2021 passed by the Co-ordinate of this

Court and submits that the said appeal was filed against

similar and identical order passed in RA No.50/2017 in

respect of property which is situated at adjacent to the

property of the appellant herein. He further submits that

the appellant in this case and the appellant in said RSA

No.2032/2021 are similarly situated.

3. Perusal of the said order reveal that plaintiff in

the said suit and the plaintiff/appellant in the present

NC: 2024:KHC:9621

case, had filed suit for bare injunction, though claiming

right in terms of the deed of sale, since there was a denial

of right of the plaintiff, a suit for bare injunction was held

to be not maintainable.

4. In that view of the matter and in view of

identical relief granted by Co-ordinate Bench of this Court,

even on the principle of parity appellant is entitled for the

reliefs sought in the I.A.No.1/2023. Accordingly

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

5. Appellant is permitted to withdraw this appeal

with liberty to file a comprehensive suit as sought for.

Sd/-

JUDGE

CR