Disposed

Sri Balakumar v. Smt. Manjula S

Karnataka HC23 Jan 2024CRP/579/2023

Case brief

AI extract

What is this about?

Defendant challenged a trial court order permitting the plaintiff to withdraw her bare-injunction suit under Order XXIII Rule 1(3) CPC despite citing Order II Rule 2(3). The High Court held wrong provision citation is not fatal, but modified the order to grant liberty for a fresh suit on the same subject matter, not cause of action.

What did the court decide?

Suit dismissed with liberty to plaintiff to institute fresh suit on same subject matter; defendant may take all contentions in fresh suit.

Sri Balakumar Vs Smt. Manjula S — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN CIVIL REVISION PETITION NO. 579 OF 2023 (IO)

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BETWEEN:

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SRI. BALAKUMAR, S/O LATE SIDDALINGAIAH G AGED ABOUT 53 YEARS, RESIDING AT NO. 20 1ST FLOOR, 1ST MAIN, 3RD CROSS, CHAMARAJAPETE, BANGALORE - 560 018.

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…PETITIONER

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(BY SRI. G.A. SRIKANTE GOWDA, ADVOCATE)

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AND:

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Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka

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SMT. MANJULA S, W/O B.R. SHIVPRAKASH, AGED ABOUT 63 YEARS, RESIDING AT NO. 413, 5TH MAIN, CHANNAPPA BADAVANE, BEHIND GOUTAM MOTORS, NELAMANGALA, BANGALORE RURAL DISTRICT - 562 133.

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…RESPONDENT

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(BY SRI. M.S. BHAGURAT, SENIOR ADVOCATE FOR SRI. PRASHANTH U.T, ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC, TO SET ASIDE THE ORDER DATED 12.09.2023 (ANNEXURE-A) PASSED BY THE COURT OF THE XI ADDITIONAL CITY CIVIL AND

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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SESSIONS JUDGE (CCH-08), BENGALURU, ON I.A.NO.16 IN O.S.NO.4297/2022 FILED UNDER ORDER II RULE 2(3) OF CODE OF CIVIL PROCEDURE AND ETC.,

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

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ORDER

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Aggrieved by the order dated 12.09.2023, passed on I.A.No.16 in O.S.No.4297/2022, by the XI Additional City

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Civil and Session Judge, Bengaluru City (CCH-8), the defendant therein has preferred the Civil Revision Petition.

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For sake of convenience, the parties are referred to as per their status before the trial Court.

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The plaintiff is the sister and the defendant is the brother. On the ground that the plaintiff acquired a property by way of a Will from her grand-mother and that the defendant is illegally trying to encroach upon a portion of the property, the plaintiff filed O.S.No.4297/2022 with

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the cause of action and the prayer made therein is as under;

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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"17) The cause of action for the suit aroused on 02.07.2022 when the defendant came near by the suit Schedule Property of the plaintiff and created nuisance illegally.

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WHEREFORE, the Plaintiff humbly prays that this Hon'ble Court be pleased to pass judgment and decree in favour of the Plaintiff as follows:-

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a) to grant the relief of permanent injunction restraining the defendant, his henchmen's, servants, agents, persons claiming under him, from interfering with the peaceful possession and enjoyment of the Plaintiff in the suit schedule property;

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b) to grant cost of the suit;

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c) to grant such other relief/s as this Hon'ble Court deems fit in the circumstances of the above case, in the interest of justice and equity.”

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The defendant contested the said suit and apart from denying the title of the plaintiff contended that he was in possession of the suit schedule property.

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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When the matter was posted for cross-examination of the plaintiff witness, the plaintiff filed an application under Order II Rule 2(3) of the CPC with the following prayer:

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"The Plaintiff herein respectfully prays that for the reasons stated in the accompanying affidavit this Hon'ble Court may be pleased to GRANT leave to file a fresh comprehensive suit on the same cause of action in pursuance to withdrawing the above suit, in the interest of justice and equity."

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The defendant opposed the said application on the ground at liberty cannot be reserved to the plaintiff to file a fresh suit after withdrawing the instant suit.

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The Trial Court considered the application filed by the plaintiff as an application filed under Order XXIII Rule 1(3) of the CPC and permitted the plaintiff to withdraw the suit with liberty to institute a fresh suit with respect to the suit schedule property on the same cause of action.

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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Aggrieved by the same, the present Civil Revision Petition is filed by the defendant in the original suit.

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The case of the defendant is that the plaintiff filed a suit for bare injunction in respect of the suit schedule property and in the course of cross-examination, she admitted that the defendant was in possession of a portion of the suit schedule property and after realizing that she could not maintain a suit for bare injunction, made an application under the wrong provision of law under Order II Rule 2(3) of the CPC for withdrawal of the suit and institution of a fresh suit and that the Trial Court ought not to have considered the said application under Order XXIII

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Rule 1(3) of the CPC and should not have allowed the same. It is further submitted that the plaintiff contention before the Trial Court is that she intends to file a suit for declaration, possession and injunction and the said suit cannot be filed on the same cause of action that the instant suit has been filed and the Trial Court committed an error in stating that the petitioner can institute a fresh

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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suit on the same cause of action. For the said reasons, it is prayed that the application filed by the plaintiff be dismissed.

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Per contra, the learned counsel for the plaintiff submits that mere wrong mentioning of the provision of law will not result in the application being dismissed. However, in the course of arguments, he fairly submits that the plaintiff intends to file a fresh suit in respect of the same subject matter which was involved in the earlier suit, but not on the same cause of action and to that extent, the impugned order may be modified.

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He further submits that the plaintiff intends to file a comprehensive suit for declaration, possession and injunction in respect of the suit schedule property, which was the subject matter of the earlier suit.

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The advocate for the defendant submits that he has no objection if the impugned order is modified, giving liberty to the petitioner to file a fresh suit on the same subject matter instead of same cause of action and that he

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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should be granted the liberty to take up all contentions before the Trial Court if a suit were to be filed by the plaintiff.

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Admittedly, in the instant case, the application was filed under Order II Rule 2(3) of the CPC. However, the trial Court has considered the same under Order XXIII Rule 1(3) of the CPC and permitted the plaintiff to withdraw the suit and institute a fresh suit on the same cause of action. The Hon'ble Supreme Court in the case of

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Pruthvirajsinh Nodhubha Jadeja (d) by Lrs. Vs Jayeshkumar Chhakaddas Shah & Others in Civil Appeal No.10521/2013, in paragraph No.8, has held that mere non-mentioning of a correct provision of law is not fatal to the application if the power to pass such an order is available with the court."

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The Trial Court has to consider the interest of justice while passing the orders and when it has the power to act under the particular provision of the CPC, it can do so and admittedly, under the given facts and circumstances of the

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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case, the Trial Court had the necessary power to consider the application as filed under Order XXIII Rule 1(3) of the

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CPC, though the provision of law mentioned in the application is mentioned as under Order II Rule 2(3) of the CPC.

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The next question that arises for consideration is whether the application filed by the plaintiff satisfied the provisions of Order XXIII Rule 1(3) of the CPC.

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Order XXIII Rule 1(3) of the CPC reads as under:-

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" 1. Withdrawal of suit or abandonment of part of claim.

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(3) Where the Court is satisfied,-

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(a) that a suit must fail by reason of

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some formal defect, or

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(b) that 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,

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it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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suit or such part of the claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim."

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In the instant case, the plaintiff on the ground that

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she became the owner of the suit schedule property based on a Will said to have been executed by her grandmother filed a suit for bare injunction against the defendant, even when he was not in occupation of a portion of the property. After realizing that she could not have maintained a suit for bare injunction when the defendant was in occupation of a portion of the property and furthermore, she had become the owner of the property

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by way of a Will for which she was required to prove the Will, sought to file a suit for declaration, possession and injunction, which is a comprehensive suit and sought the permission of the Court to withdraw the existing suit and file a fresh suit. The Trial Court having considered the application as an application filed under Order XXIII Rule 1(3) of CPC, should have permitted the plaintiff to withdraw the said suit and file a fresh suit in respect of the

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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same subject matter and not on the same cause of action and the impugned order requires to be modified to that extent. Hence, the following:

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ORDER

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i. O.S.No.4297/2022, pending on the file of the XI Additional City Civil and Sessions Judge, Bengaluru City (CCH8) is hereby dismissed with liberty to the plaintiff therein to institute a fresh suit in respect of the same subject matter.

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ii. It is needless to state that the defendant has the liberty to take all contentions before the Trial Court, if the plaintiff were to file a fresh suit.

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iii. Accordingly, the Civil Revision Petition is hereby disposed of.

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NC: 2024:KHC:3090 CRP No. 579 of 2023

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Pending interlocutory applications, if any stand

disposed of.

Sd/JUDGE

List No.: 1 Sl No.: 40 CT: BHK

Sri Balakumar v. Smt. Manjula S

Case brief

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Sri Balakumar v. Smt. Manjula S

Case brief

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