Disposed

Sri. Channakeshava Swamy Devalaya Samithi v. Smt. Lakshmamma

Karnataka HC11 Sept 2023RSA/1149/2023

Case brief

AI extract

What is this about?

The court heard the appellant's request to withdraw a regular second appeal with liberty to file a fresh suit for declaration. Considering the potential for the liberty to affect respondents' rights regarding limitation and recurring cause of action, the court disposed of the appeal as withdrawn simpliciter without granting liberty.

What did the court decide?

Appeal dismissed as withdrawn simpliciter; liberty to file fresh suit for declaration denied.

Sri. Channakeshava Swamy Devalaya Samithi… — Civil Procedure and Limitation | Karnataka HC (2023)

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1 - NC: 2023:KHC:32578 RSA No. 1149 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1149 OF 2023 (INJ)

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BETWEEN:

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SRI CHANNAKESHAVA SWAMY DEVALAYA SAMITHI-572 118 GULAGANJIHALLI, ARIYUR POST, TUMAKURU TALUK AND DISTRICT..

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REPRESENTED BY ITS SECRETARY MAUNA CHANNAIAH S/O. CHANNAIAH AGED ABOUT 74 YEARS, R/O. GULAGANJIHALLI, ARIYUR POST -572 118 TUMAKURU TALUK AND DISTRICT.

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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PRESENTLY R/AT MANJUSHRI NILAYA 3^RD CROSS ROAD, SIDDAGANGA EXTN. TUMAKURU-572 102.

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…APPELLANT

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(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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SMT. LAKSHMAMMA W/O. DASAPPA AGED ABOUT 71 YEARS,

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SRI D. BHASKARA S/O. DASAPPA AGED ABOUT 52 YEARS,

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2 - NC: 2023:KHC:32578 RSA No. 1149 of 2023

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SRI KESHAVAMURTHY S/O. DASAPPA AGED ABOUT 49 YEARS,

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SRI SREEDHARA S/O. DASAPPA AGED ABOUT 47 YEARS,

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SRI PURUSHOTHAMA S/O. DASAPPA AGED ABOUT 45 YEARS,

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RESPONDENTS NO.1 TO 5 ARE R/O. GULAGANJIHALLI ARIYUR POST – 572 118 TUMAKURU TALUK AND DISTRICT.

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…RESPONDENTS

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(BY SRI BALAGANGADHAR G.S., ADVOCATE FOR R1 TO R5)

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THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.04.2023 PASSED IN R.A.NO.31/2021 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU, DISMISSING AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.02.2021 PASSED IN O.S.NO.252/2012 ON THE FILE OF THE V ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU.

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

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JUDGMENT

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Learned counsel for the appellant has filed a memo seeking permission of this Court to withdraw the appeal with liberty to file a fresh suit for declaration.

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NC: 2023:KHC:32578 RSA No. 1149 of 2023

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In terms of the memo, the appeal is dismissed as withdrawn with liberty as sought.

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Sd/JUDGE

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ST List No.: 1 Sl No.: 97

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NC: 2023:KHC:32578 RSA No. 1149 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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[SRI. CHANNAKESHAVA SWAMY DEVALAYA SAMITHI VS. SMT. LAKSHMAMMA AND OTHERS]

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HPSJ

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15.09.2023

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(VIDEO CONFERENCING / PHYSICAL HEARING)

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ORDER ON FOR BEING SPOKEN TO

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Heard the learned counsel for the appellant and learned counsel for the respondents.

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On the previous date of occasion, learned counsel for the appellant had filed a memo seeking permission of this Court to withdraw the appeal with liberty to file a fresh suit for declaration. Accordingly, this Court dismissed the appeal with liberty as sought.

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Now, learned counsel for the respondents would submit that copy of the memo was not served on him before filing the same and after disposal of the appeal, copy is served. Hence, the counsel contends that very prayer cannot be granted without making an application on memo, the said liberty cannot be granted and it affects the right of the respondents to raise objection regarding limitation and other aspects. Hence, the appeal may be dismissed as simpliciter of not pressing the appeal.

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Learned counsel for the appellant would submit that the said liberty granted by this Court will not curtail the right of the

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NC: 2023:KHC:32578 RSA No. 1149 of 2023

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respondents in raising such objection, if suit is filed for the relief of declaration and all contentions can be kept open.

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Having heard the learned counsel for the appellant and also learned counsel for the respondents and considering the fact that suit is filed for the relief of permanent injunction and any number of suits can be filed on recurring cause of action for permanent injunction and there is a force in the contention of the learned counsel for the respondents that while seeking the permission to withdraw the appeal, the appellant can seek only for the relief of dismissal of appeal as not pressed but, if liberty is given, the same will be used before the Trial Court, if suit is filed for the declaration that Court has given the liberty and if the appellant intend to file any suit for the relief of declaration, he can seek the relief based on his independent right.

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With these observations, appeal is disposed of by simpliciter for withdrawal of the appeal and no liberty as sought.

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Sd/JUDGE

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List No.: 1 Sl No.: 1

Sri. Channakeshava Swamy Devalaya Samithi v. Smt. Lakshmamma

Case brief

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Sri. Channakeshava Swamy Devalaya Samithi v. Smt. Lakshmamma

Case brief

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