Dismissed

Doddathimmaiah Dead by Lrs v. Chikkalingamma Dead by Lrs

Karnataka HC19 Dec 2023WP/2979/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed the rejection of a writ petition seeking to quash the trial and appellate courts' refusal to allow withdrawal of a suit with liberty to file a fresh suit. The High Court held that since the petitioners had already suffered adverse findings in the underlying declaration suit, no grounds existed for interference.

What did the court decide?

The writ petition stands rejected. The order of the trial court and appellate court refusing leave to withdraw the suit with liberty to file a fresh suit remains intact.

Doddathimmaiah Dead by Lrs Vs Chikkalingamma Dead by Lrs — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:46425 WP No. 2979 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 2979 OF 2023 (GM-CPC)

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BETWEEN:

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DODDATHIMMAIAH DEAD BY LRS

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LAKSHMAMMA, W/O LATE DODDATHIMMAIAH, AGED ABOUT 55 YEARS,

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SAROJAMMA,

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D/O LATE DODDATHIMMAIAH, AGED ABOUT 55 YEARS,

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PRAKASHA D,

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S/O LATE DODDATHIMMAIAH, AGED ABOUT 31 YEARS,

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Digitally signed by SUCHITRA M J Location: High Court of Karnataka

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1 TO 3 ARE R/AT YALADADLU VILLAGE, HALDODDERI POST, KORA HOBLI, TUMAKURU TALUK.

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SANNAIAH DEAD BY HIS LRS

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JAYAMMA,

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W/O LATE SANNAIAH, AGED ABOUT 55 YEARS,

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NARAYANAPPA, S/O LATE SANNAIAH, AGED ABOUT42 YEARS,

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2 - NC: 2023:KHC:46425 WP No. 2979 of 2023

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RANGADHAMAIAH, S/O LATE SANNAIAH, AGED ABOUT 38 YEARS, 4 TO 6 ARE R/AT YALADADLU VILLAGE, HALADODDERI POST, KORA HOBLI, TUMAKURU TALUK.

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…PETITIONERS

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(BY SRI. AMAR GOWDA K.S., ADVOCATE FOR SRI. D.M.MANJUNATH, ADVOCATE)

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AND:

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CHIKKALINGAMMA DEAD BY LRS

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THIMMAKKA, W/O LATE CHIKKALINGAMMA, AGED ABOUT 55 YEARS, R/AT SOMASAGARA VILLAGE, NELAHAL POST, BELLAVI HOBLI, TUMAKURU TALUK. C/O NAGARAJU, YALADADLU VILLAGE, KORA HOBLI, TUMAKURU TALUK.

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MANJAMMA,

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W/O NAGARAJU, D/O LATE CHIKKALINGAMMA, AGED ABOUT 42 YEARS, R/AT CHIKKADASARAHALLI, KATAVEERANAHALLI POST, KALLAMBELLA HOBLI, SIRA TALUK, TUMAKURU DISTRICT.

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RANGANNA DEAD BY HIS LRS

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GANGAMMA,

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W/O LATE RANGANNA, AGED ABOUT 49 YEARS,

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MAMATHA,

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W/O GANGARAJU, D/O LATE RANGANNA, AGED ABOUT 29 YEARS, 3 AND 4 ARE R/AT KUNDURU, DEVARAYAPATNA POST, TUMAKURU TALUK.

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CHIKKATHIMMAIAH, S/O LATE THIMMAIAH, AGED ABOUT 44 YEARS,

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NAGARAJU, S/O LATE THIMMAIAH, AGED ABOUT 40 YEARS,

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LAKSHMANA,

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S/O LATE THIMMAIAH, AGED ABOUT 34 YEARS,

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5 TO 7 ARE R/AT YALADADLU VILLAGE, HALADODDERI POST, KORA HOBLI, TUMAKURU TALUK.

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SIDDAMMA DEAD BY LRS

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THIMMAKKA, W/O POOJARI SIDDAPPA, D/O SIDDAMMA, AGED ABOUT 65 YEARS, R/AT MOOGANAHALLI,

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NC: 2023:KHC:46425 WP No. 2979 of 2023

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GULIGENAHALLI POST, KASABA HOBLI, SIRA TALUK, TUMAKURU DISTRICT.

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DODDAIAH,

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S/O HOTTE THIMMAIAH, AGED ABOUT 55 YEARS, R/AT YALADALU VILLAGE, HALADOODERI POST, KORA HOBLI, TUMAKURU TALUK.

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…RESPONDENTS

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(BY SRI. SUBRAMANYA PRASAD T V., ADVOCATE FOR R1 TO R7; SRI. NARASIMHARAJU, ADVOCATE FOR R9; R8 – SERVED AND UNREPRESENTED)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNEXURE - A DATED 12.10.2022 AND ALLOW THE PETITIONERS APPLICATION UNDER 23 RULE 1 READ WITH SECTION 151 OF CPC WITHDRAW THE SUIT WITH LIBERTY TO FILE FRESH SUIT IN RESPECT OF SAME CAUSE OF ACTION AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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5 - NC: 2023:KHC:46425 WP No. 2979 of 2023

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ORDER

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The petitioners, appellants in R.A.No.349/2018 on the file of VI Additional District and Sessions Judge, Tumakuru, are before this Court, aggrieved by order dated 12.10.2022, rejecting their application filed under Order 23 Rule 1 of the Code of Civil Procedure, 1908 (for short ‘CPC’) to withdraw the suit with liberty to file fresh suit.

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Heard Sri. Amar Gowda.K.S., learned counsel for Sri. D.M.Manjunath, learned counsel for the petitioners and Sri. Subramanya Prasad.T.V., learned counsel for respondent Nos.1 to 7 as well as Sri. Narasimharaju, learned counsel for respondent No.9. Perused the writ petition papers.

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Learned counsel for the petitioners would submit that the trial Court committed a grave error in rejecting the application filed by the petitioners under Order 23 Rule 1 of CPC to withdraw the suit pointing out defects in the suit. Learned counsel referring to above provision would submit that when the plaintiffs point out

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defect in the plaint, the Court shall permit the plaintiffs to withdraw the suit with liberty to file fresh suit. It is further submitted that the trial Court failed to exercise its jurisdiction vested in it under Order 23 Rule 1 of CPC. Thus, he prays for allowing the writ petition.

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Per contra, learned counsel for the respondents would submit that the petitioners-plaintiffs suffered judgment and decree in O.S.No.75/2016 under judgment and decree dated 09.10.2018. The suit of the petitionersplaintiffs for declaration, is rejected. The findings on the issues are against the petitioners-plaintiffs. Hence, it is submitted that, unless those findings are set aside, the petitioners cannot be permitted to file fresh suit. Thus, they justified the order passed by the trial Court.

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Having heard the learned counsels for the

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parties and on perusal of the writ petition papers, I am of the view that no ground is made out to interfere with the impugned order. Moreover, impugned order is neither perverse nor suffers from any material irregularity so as to

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7 - NC: 2023:KHC:46425 WP No. 2979 of 2023

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warrant interference under Article 227 of the Constitution of India.

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The suit of the petitioners-plaintiffs in O.S.No.75/2016 for declaration and permanent injunction was dismissed by judgment dated 09.10.2018. The issues in the said O.S.No.75/2016 reads as follows:

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“1. Whether the plaintiffs prove that they are the absolute owners and in possession of suit schedule property?

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2. Whether the plaintiffs prove that the defendants are interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property?

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3. Whether plaintiffs are entitled for the reliefs as prayed?"

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The above issues are negatived and suit is dismissed. Against the said judgment and decree, the petitioners preferred R.A.No.349/2018. In the said R.A.No.349/2018, application is filed under Order 23 Rule

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1 of CPC, seeking leave to withdraw the suit with a liberty

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to file fresh suit. The Appellate Court rightly rejected the said application observing that unless the findings against the petitioners-plaintiffs are upset, the question of granting liberty to file fresh suit would not arise. When the findings on the issues referred above stare at the petitioners-plaintiffs, the petitioners-plaintiffs would not be in a position to file fresh suit. The Appellate Court is right in rejecting the application.

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There is no merit in the writ petition and accordingly, writ petition stands rejected.

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Sd/JUDGE

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SMJ List No.: 1 Sl No.: 10

Doddathimmaiah Dead by Lrs v. Chikkalingamma Dead by Lrs

Case brief

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Doddathimmaiah Dead by Lrs v. Chikkalingamma Dead by Lrs

Case brief

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