Allowed

Sri Srikrishna v. Sri Ananda

Karnataka HC6 Jan 2023CRP/57/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a civil revision petition challenging the Trial Court's order permitting a plaintiff to withdraw a succession suit under Order 23 Rules 2 and 3 r/w Section 151 of the CPC. The High Court held the withdrawal order unsustainable as the plaintiff failed to show a formal defect or sufficient grounds, setting aside the impugned order and restoring the suit to the ori

What did the court decide?

The impugned order dated 06.01.2022 allowing withdrawal is set aside; the suit is restored to its original file.

Sri Srikrishna Vs Sri Ananda — Succession and Inheritance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6TH DAY OF JANUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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CIVIL REVISION PETITION NO.57 OF 2022

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BETWEEN:

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SRI SRIKRISHNA S/O LATE MUNIBYRAPPA AGED ABOUT 48 YEARS R/At NO.37, K.M. MAIN ROAD VIDYA PEETA POST, KODIPALYA BENGALURU - 560 060.

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...PETITIONER

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(BY SRI G.S. VENKAT SUBBA RAO, ADVOCATE)

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AND:

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1. SRI ANANDA

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S/O LATE MUNIBYRAPPA AGED ABOUT 50 YEARS R/O NO.74, KODIPALYA HEMMIGEPURA MAIN ROAD KENGERI HOBLI, BENGALURU SOUTH TALUK BENGALURU -560 060.

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SMT. PARVATHAMMA W/O LATE MUNIBYRAPPA R/O KODIPALYA HEMMIGEPURA MAIN ROAD KENGERI HOBLI, BENGALURU SOUTH TALUK

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BENGALURU -560 060. (REPORTED DEAD BEFORE THE TRIAL COURT PETITIONER AND OTHER RESPONDENTS ARE THE LEGAL REPRESENTATIVES OF DEFENDANT NO.2)

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SMT. SARASWATHI D/O LATE MUNIBYRAPPA W/O MALLAIAH AGED ABOUT 56 YEARS

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SMT. DHANALAKSHMI D/O LATE MUNIBYRAPPA W/O K. SHIVANNA AGED ABOUT 53 YEARS

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ALL ARE RESIDENTS OF KODIPALYA-HEMMIGEPURA MAIN ROAD KENGERI HOBLI BENGALURU SOUTH TALUK BENGALURU-560 060.

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...RESPONDENTS

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(BY SRI THIMMANNA, ADVOCATE FOR R-1; SRI RAVI H., ADVOCATE FOR R-3; R-2 SERVED)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER DATED 06.01.2022 PASSED ON IA NO.1 IN OS NO.6321/2019 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE IA NO.1 FILED UNDER ORDER 23 RULE 2 AND 3 READ WITH SECTION 151 OF CPC.

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THIS CIVIL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Plaintiff had initially filed a petition under Section 276 of

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the Indian Succession Act, 1925, for issuance of succession certificate based on a Will dated 30.06.2003 alleged to have been executed by the deceased father of the plaintiff and defendant No.1. The defendant having disputed the Will, the proceedings got converted into the suit. The defendant No.1 claimed that his deceased father executed the Will dated 5.10.1994 in his favour.

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Plaintiff filed an application under Order 23 Rules 2 and 3 r/w Section 151 of CPC to permit the plaintiff to withdraw

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the suit with a liberty to file a comprehensive suit afresh. The defendant No.1 filed objections to the said application. The learned Trial Court after examining the material placed on record allowed the application permitting the plaintiff to withdraw the suit reserving liberty to file comprehensive suit afresh against which the present Civil Revision Petition is filed.

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Learned counsel appearing for the petitioner-

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defendant No.1 submits that in the absence of any formal defect in the suit or any sufficient grounds made out to permit the plaintiff to withdraw the suit, the impugned order passed by the Trial Court is not sustainable in law.

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On the other hand, learned counsel appearing for the plaintiff would submit that the averments made in the affidavit filed in support of the application clearly indicates that there was a formal defect in the suit and also sufficient ground was made out for permitting the plaintiff to withdraw the suit and institution of comprehensive suit. The learned Trial Judge taking into account this aspect has rightly passed the impugned order and the same does not warrant any interference.

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I have examined the submissions made by the learned counsel appearing for the parties.

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Order 23 Sub-rules 2 and 3 of Rule 1 r/w Section 151 of CPC specifies that, Court if satisfied that a suit must fail by reason of some formal defect, or that there are sufficient

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grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit, on such terms, the Court may grant permission to the plaintiff to withdraw the suit and file a suit afresh.

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In the affidavit filed by the plaintiff in support of the application under Order 23 Sub-rules 2 and 3 of Rule 1 r/w Section 151 of CPC, the only contention taken was that, based on the Will executed by the father of the parties, the defendant No.1 has created certain documents and represented it before the BBMP to get transferable Development Rights and compensation amount on behalf of the Family. The said contention was the defense taken by the Defendant No.1 in the written statement.

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The plaintiff having not shown what was the formal

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defect in the suit or made out sufficient ground to withdraw the suit and file a suit afresh, the impugned order passed by the Trial Court is contrary to Order 23 Sub-rules 2 and 3 of Rule 1 r/w Section 151 of CPC. Accordingly, I pass the following:

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ORDER

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i) Civil Revision Petition is allowed.

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ii) Impugned order dated 06.01.2022 passed by the XV Additional City Civil and Sessions Judge, Bengaluru in O.S.No.6321/2019 is hereby set aside and the suit is restored to its original file.

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iii) Plaintiff is at liberty to file an appropriate application afresh under Order 23 Rules 2 & 3 of CPC. If such an application is filed, the Trial Court is requested to dispose of the same in accordance with law after providing an opportunity of hearing to the defendants.

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Sd/JUDGE

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HR

Sri Srikrishna v. Sri Ananda

Case brief

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Sri Srikrishna v. Sri Ananda

Case brief

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