Allowed

Sanaulla Sheriff v. Sri Dandu Mariamma Temple Trust

Karnataka HC15 Nov 2023RFA/520/2008

Case brief

AI extract

What is this about?

The High Court allowed the appellants' regular first appeal under Section 96 CPC. The Court exercised its inherent powers under Order 23 Rule 1(3)(b) and Section 151 CPC to permit the plaintiffs to withdraw their suit, likely due to technical defects, and file a fresh suit on the same cause of action, while reserving all defenses for the appellants.

What did the court decide?

Plaintiffs permitted to withdraw the suit and file a fresh suit on the same cause of action; defenses reserved; embezzlement amounts transferred to Trial Court for fixed deposit.

Sanaulla Sheriff Vs Sri Dandu Mariamma… — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:41488 RFA No. 520 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 520 OF 2008 (RES)

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BETWEEN:

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SANAUALLA SHERIFF S/O LATE SRI. HAJI ABDUL KHADER AGED ABOUT 70 YEARS NO.25, VENKATASWAMY NAIDU ROAD SHIVAJINAGAR, BANGALORE-560051 DEAD BY HIS LRS

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1(a) MR. ZIAULLA SHARIFF S/O LATE SANAULLA SHARIFF AGED ABOUT 52 YEARS R/A No.282, NEHRUPURAM THIMMAIAH ROAD BENGALURU-560051.

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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1(b) MR. FAYAZ PASHA S/O LATE SRI. HAJI ABDUL KHADER AGED ABOUT 54 YEARS No.25, VENKATASWAMY NAIDU ROAD SHIVAJINAGAR, BANGALORE-560051

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NAVEED PASHA S/O LATE NAWAB JAN AGED ABOUT 42 YEARS NO.1213, 4^TH CROSS, GANDHINAGAR KADUGONDANAHALLI BANGALORE-560045

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NC: 2023:KHC:41488 RFA No. 520 of 2008

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WAHEED PASHA S/O LATE NAWAB JAN AGED ABOUT 40 YEARS NO.1213, 4^TH CROSS, GANDHINAGAR KADUGONDANAHALLI BANGALORE-560045

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…APPELLANTS

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(BY SRI H H KALADAGI, SRI S.M.G. AZAM AND SRI.P. VEERABHADRAPPA, ADVOCATES)

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AND:

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SRI DANDU MARIAMMA TEMPLE TRUST SHIVAJI CIRCLE SHIVAJINAGAR BANGALORE-560051 BY ITS TRUSTEES

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SRI. V.A. MOHANARANGAN B.A.B.L., S/O SRI. V.T. ARMUGHAN AGED ABOUT 84 YEARS NO.24, 9^TH MAIN, 4^TH BLOCK JAYANAGAR, BANGALORE

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SRI. P.V. VENKATESAN S/O SRI. VENKATESHWARA IYER AGED ABOUT 80 YEARS NO.51/6, KOTHANDARAM LAYOUT BANGALORE-560042

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SRI. V.R. SRINIVASAN S/O SRI. V. RAMUNAJA MODALIAR AGED ABOUT 83 YEARS NO.36, LAKSHAMAN MUDALIAR STREE BANGALORE-560001.

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SRI. M.S. HARI PRASAD S/O SRI. M.L. SATHYA MURTHY AGED ABOUT 43 YEARS

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3 - NC: 2023:KHC:41488 RFA No. 520 of 2008

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NO.6, GOKULAM, M.A.H. ROAD TASKER TOWN BANGALORE-560017

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SRI. SUNDARESH S/O LATE P.KOTHANDA PANI AGED ABOUT 51 YEARS G-269, OLD TOWNSHIP HAL COLONY BANGALORE-560017

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SRI. JAI KUMAR S/O SRI. MOHAN RAM AGED ABOUT 47 YEARS NO.7, 2^ND CORSS, N,K PALYAM SHIVAJINAGAR, BANGALORE-560 017

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SRI. M. DORAISWAMY S/O SRI MOHAN NAIDU AGED ABOUT 48 YEARS NO.31, OLD CEMETERY RIOAD SHIVAJI NAGAR, BANGALORE-560 051.

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SRI. K. LOKESH REDDIAR S/O V. KUPPUSWAMY REDDY AGED ABOUT 57 YEARS NO.59/11, CHICK BAZAR ROAD SHIVAJINAGAR BANGALORE-560051

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R3 TO R9 ARE DELETED AS PER ORDER DTD. 30.03.2023

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SMT. SAROJINI BALAASUNDARAM D/O JAYASEELAN AGED ABOUT 52 YEARS NO.42, DICKENSON ROAD BANGALORE-560051

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4 - NC: 2023:KHC:41488 RFA No. 520 of 2008

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SRI. JAGANATH PILLAI S/O LATE CHINNASWAMY AGED ABOUT 81 YEARS R/AT 581, 6^TH A MAIN 3^RD STAGE, 3^RD BLOCK BASAVESHWARA NAGAR BENGALURU-560079

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SMT. MAHESHWARI VIJAYASARATHY W/O VIJAYASARATHY AGED ABOUT 49 YEARS R/AT 36, LAKSHMANA MUDALIAR STREET SHIVAJINAGAR BENGALURU-560001.

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SRI. S. GOVINDRAJ S/O LATE K.A. SHANMUGAM AGED ABOUT 73 YEARS R/AT 28, KALIAMMAN TEMPLE SULTHANGUNATA ROAD SHIVAJINAGAR, BENGALURU-560051.

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SRI. M. MADANA GOPAL B.A.LL.B S/O V.A.MOHANRANGAM AGED ABOUT 66 YEARS R/AT 93/2, 93/3 CHARLES CAMPBELL ROAD COX TOWN, BENGALURU.

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SRI. D. DAMODARAN S/O LATE K.DEVARAJULU NAIDU AGED ABOUT 75 YEARS R/AT 11 & 12, 8^TH MAIN RAMAMURTHY NAGAR BENGALURU-560001.

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SRI. ABU S/O CHINNAPPA

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5 - NC: 2023:KHC:41488 RFA No. 520 of 2008

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AGED ABOUT 55 YEARS R/AT 319, 9^TH D MAIN HBR LAYOUT, KALYAN NAGAR BENGALURU-560043.

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SRI. K. VIJAYA SHEKAR S/O LATE K.A. ANJANEYULU AGED ABOUT 54 YEARS R/AT 30, A 2^ND STREET OLD CEMETERY ROAD SHIVAJINAGAR BENGALURU-560051

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R11 TO R17 ARE ADDED AS PER ORDER DTD.30.03.2023.

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…RESPONDENTS

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(BY SRI.M.L. DAYANAND KUMAR, ADVOCATE SRI. M.D. RAGHUNATHA, ADVOCATE FOR R1 TO R17 V/O DTD. 30/03/2023 R3 TO R9 ARE DELETED)

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THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF THE CPC AGAINST THE JUDGMENT AND DECREE DT. 21.1.08 PASSED IN OS NO.15126/1999 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL & SESSIONS JUDGE, MAYOHALL, BANGALORE, DECREEING THE SUIT FOR EJECTMENT AND ETC.,

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THIS REGULAR FIRST APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Counsel for the respondents/plaintiffs files an application under Order 23 Rule 1 (3) (b) r/w Section 151 CPC.

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Copy furnished to the counsel for the appellants. Taking

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note of the fact that the plaintiff is a temple trust and framed the suit, had some inherent technical defects. Since, the suit

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NC: 2023:KHC:41488 RFA No. 520 of 2008

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would fail on the ground of technicalities and not on merits; it has become just and necessary for this Court to exercise its power under Order 23 Rule 1 CPC.

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Counsel for the appellants however submits that in the event of the Court permitting to withdraw the suit and files a fresh suit, all available defence to the appellants/defendants be reserved to be urged in the intended suit.

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It goes without saying that such a liberty is always available for the appellants/defendants. Nevertheless to avoid confusion, if any, at later point of time in the intended suit, necessary observations also need to be made while allowing the application to withdraw the present suit and file fresh suit.

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Accordingly following order is passed:

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ORDER

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Application is allowed.

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Plaintiffs are permitted to withdraw the suit and file fresh suit in accordance with law on the very same cause of action.

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It is made clear that all the defence available for the appellants/defendants are kept open to be urged in the intended suit in accordance with law and Trial

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NC: 2023:KHC:41488 RFA No. 520 of 2008

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Court shall dispose of the intended suit strictly in accordance with law, not influenced by the observations, if any, made by the learned Trial Judge in the impugned judgment.

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If a fresh suit is filed by the plaintiffs, taking note of the fact that the lis was pending between the parties for a consideration length of time, the suit be expedited.

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The amount in deposit before this Court shall be transferred to the Trial Court with a further direction to keep the same in fixed deposit for the successful party to withdraw the same with accrued interest.

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Sd/JUDGE

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Sanaulla Sheriff v. Sri Dandu Mariamma Temple Trust

Case brief

What is this about?

What did the court decide?

Sanaulla Sheriff v. Sri Dandu Mariamma Temple Trust

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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