Partly allowed

Smt. Bhagyamma v. Sri Shivaramu

Karnataka HC2 Aug 2023WP/12193/2021

Case brief

AI extract

What is this about?

Court exercised Article 227 jurisdiction and disposed of writ petition challenging order allowing suit withdrawal with liberty to file fresh suit. While upholding the substantive order, Court enhanced costs from Rs.2,000 to Rs.15,000 due to 10-year delay in prosecution.

What did the court decide?

Impugned order confirming withdrawal of suit with liberty to file fresh suit confirmed; costs enhanced from Rs.2,000 to Rs.15,000 payable by respondent within 15 days.

Smt. Bhagyamma Vs Sri Shivaramu — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:27064 WP No. 12193 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 12193 OF 2021 (GM-CPC)

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BETWEEN:

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SMT. BHAGYAMMA, AGED ABOUT 65 YEARS, W/O LATE MADEGOWDA, RESIDENT OF BYADARAHALLI VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 401.

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SRI. MAHADEVU, AGED ABOUT 50 YEARS, S/O LATE MADEGOWDA, RESIDENT OF BYADARAHALLI VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571 401.

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…PETITIONERS

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(BY SRI. J. N. NAVEEN KUMAR FOR SRI. MUKKANNAPPA S. B, ADVOCATE)

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AND:

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Digitally signed by NANDINI B G Location: HIGH COURT OF KARNATAKA

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SRI. SHIVARAMU, AGED ABOUT 50 YEARS, S/O LATE CHIKKATHIMMAIAH, RESIDING AT NO. 10, CHANNAPPANAIDU LAYOUT, BANASHANKARI III STAGE, BENGALURU - 560 085.

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…RESPONDENT

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(BY SRIYUTHS VIVEKANAND V A/W. K CHETHAN KUMAR.,ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.10.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT MALAVALLI IN O.S.NO.190/2009 IN IA. NO. 1/2014 O/O 23 RULE 1 OF CPC AT ANNX-K AND CONSEQUENTLY REMAND THE MATTER TO THE TRIAL COURT TO PROCEED FROM THE STAGE THE MATTER WAS PENDING AND ETC.

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NC: 2023:KHC:27064 WP No. 12193 of 2021

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioners, defendants in O.S.No.190/2009 on the file of the Civil Judge, Junior Division, Malavalli, are before this Court under Article 227 of the Constitution of India challenging the order dated 14.10.2019, passed on an interlocutory application filed by the respondent/plaintiff under Order XXIII Rule 1 of CPC, which is allowed by the Trial Court.

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Heard Shri J N Naveen Kumar for Shri Mukkannappa S B, learned counsel for petitioners and Shri Chethan Kumar, learned counsel for respondent and perused the writ papers.

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The respondent/plaintiff instituted a suit in O.S.No.190/2009 for declaration that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property and also for consequential permanent injunction against the respondents/defendants. After trial, when the matter was at the stage of arguments, the

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respondent/plaintiff filed an application under Order XXIII Rule 1 of CPC to withdraw the suit with liberty to institute a fresh suit on the ground that, suit suffers from defects. The said application was allowed by order dated 27.10.2014. The said order was challenged by the petitioners herein before this Court in W.P.No.7228/2015.

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This Court vide order dated 20.7.2015 (Annexure-J) set aside the order passed by the Trial Court, allowing the application filed the respondent/plaintiff and remitted the matter back to the Trial Court for fresh consideration of the application filed under Order XXIII Rule 1 of CPC. Thereafter, the Trial Court on re-consideration of the aforesaid application, under impugned order dated 14.10.2019, allowed the application and permitted the respondent/plaintiff to withdraw the suit with liberty to file fresh suit on same cause of action. Questioning the same, petitioners/defendants are before this Court.

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Learned counsel for the petitioners would submit

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that application to withdraw the suit was filed at the fag

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end of the proceedings that too when the suit was posted for final arguments. It is his submission that the parties had let in their evidence and the petitioners/defendants also had disclosed their defence and that, when the suit was at the final stage of arguments, it would be impermissible for the Trial Court to permit the plaintiff to withdraw the suit which would prejudicially affect the right and interest of the defendants, petitioners herein. Further, the learned counsel would submit that the petitioners have not satisfied the pre-condition laid down under Sub Rule (1) of Order XXIII CPC to allow the application for withdrawal of the suit. Moreover, the plaintiffs have failed to point out the defects in the plaint. Thus, he prays for allowing the writ petition by dismissing the application filed by the respondent/plaintiff under Order XXIII Rule 1 of CPC.

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Per contra, learned counsel for the

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respondent/plaintiff would submit that this Court by order dated 20.7.2015 in W.P.No.7228/2015 remitted the

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application filed by the respondent/ plaintiff under Order XXIII Rule 1 of CPC for reconsideration and while remanding had observed that, the respondent/plaintiff had not disclosed the reasons or defects in the suit and that the Trial Court had not indicated what is the formal defect noticed so as to permit the plaintiff to withdraw the suit.

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The learned counsel would submit that, the plaintiff pointed out the defects before the Trial Court i.e. wrong description of the schedule as well as its identity. He submits that if the suit is decreed with wrongful description of schedule and if there is defect with regard to identification of the suit property, the decree would be on paper which could not be enforced. Further, learned counsel for the respondent/plaintiff submits that the plaintiff has made out a case for withdrawal of the suit under Order XXIII Rule 1 of CPC and thus, he justifies the impugned order passed by the Trial Court.

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Having heard the learned counsels for the parties

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and on perusal of the writ petition, the only point that falls

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NC: 2023:KHC:27064 WP No. 12193 of 2021

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for consideration is, as to whether in the facts and circumstances of the case, the impugned order requires interference under Article 227 of the Constitution of India?

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This Court would exercise jurisdiction under Article 227 of the Constitution of India if a person who approaches this Court establishes the prejudice that would be caused and further if he establishes that the impugned order would result in miscarriage of justice.

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In the instant case, the petitioners/defendants have not pointed out the prejudice that would be caused to them if the respondent/plaintiff is permitted to withdraw his suit with liberty to file fresh suit. Further, if the respondent/plaintiff is permitted to withdraw his suit, no injustice would be caused to the petitioners/defendants. The plaintiff/respondent has pointed out that as the description of the property made in the plaint is not the schedule property, it would be difficult to identify the suit schedule property. The Trial Court has observed that even after several amendments, it is noticed that there is a

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formal defect in the suit which requires to be rectified by the plaintiff.

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Order XXIII Rule 1 of CPC provides for withdrawal of suit or abandonment of part of claim. If the Court is satisfied that the suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim and on such terms, the Court could permit the plaintiff to withdraw the suit. The Trial Court on going through material on record particularly, the plaint, was of the view that there is a defect in the plaint and the plaintiff has not narrated how he had acquired the property and therefore, has come to the conclusion that, it is a fit case for permitting the plaintiff to withdraw the suit with liberty to file fresh suit.

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For the aforesaid reasons, I am of the view that, it is not a fit case for interference. However, it is noticed that the Trial Court has allowed the application on cost of Rs.2,000/-. Though the order passed by the Trial Court,

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allowing the application filed by the respondents/plaintiffs, is confirmed, however, this Court is of the opinion that, on the facts and circumstances of the case, cost imposed by the Trial Court is very meager as the respondent/plaintiff has prosecuted the case and dragged the defendants/petitioners to the Court and conducted the proceedings for more than 10 years. Therefore, it would be just and appropriate to enhance the cost from Rs.2,000/- to Rs.15,000/-. Cost shall be paid by the respondent/plaintiff to the petitioners/defendants within 15 days from today.

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Writ petition is disposed of accordingly.

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SD/JUDGE

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List No.: 1 Sl No.: 59 CT: BHK

Smt. Bhagyamma v. Sri Shivaramu

Case brief

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Smt. Bhagyamma v. Sri Shivaramu

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