Petitioner sought withdrawal of his suit in appeal to file a fresh comprehensive suit for larger reliefs. The High Court found no formal defect going to the root of the suit and upheld the appellate court's rejection of the withdrawal application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 4981 OF 2024 (GM-CPC)
BETWEEN:
SHANKARAPPA S/O MAHADEVAPPA AGE 50 YEARS AGRICULTURIST R/O NERALEKERE VILLAGE AMRUTHPURA HOBLI TARIKERE TALUK - 577 228.
…PETITIONER
(BY SRI. RAVI H K., ADVOCATE)
AND:
MAHESHWARAPPA
SINCE DEAD BY LRS
Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA
THE RESPONDENT NOS. 1 TO 4 ARE RESIDENTS OF BETTATHAVAREKERE VILLAGE AMRUTHAPURA HOBLI TAVAREKERE TALUK - 577 228.
SMT. HALAMMA W/O BASAVEGOWDA, SINCE DECEASED, REP. BY HER LRS
THE RESPONDENT NOS. 6 TO 10 ARE R/O NANDI VILLAGE AND POST LINGADAHALLI HOBLI TARIKERE TALUK - 577 228.
RESPONDENTS NOS.11 AND 12 ARE AGRICULTURISTS ARE R/O JALDIHALLI VILLAGE SHIVANI HOBLI AJJAMPURA TALUK 577 228.
RESPONDENT NOS. 14 TO 15 ARE R/O NARALEKERE VILLAGE AMRUTHAPURA HOBLI TARIKERE TALUK.
NC: 2024:KHC:41423 WP No. 4981 of 2024
RESPONDENTS NO 19 AND 20 ARE R/O NERALAKERE VILLAGE AMRUTHPURA HOBLI TARIKERE TALUK 577 228.
…RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 04/01/2023 PASSED ON I.A.NO.7 FILED UNDER ORDER 23 RULE 1 READ WITH SECTION 151 CPC VIDE ANNEXURE-H PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND PRINCIPAL JMFC., TARIKERE IN R.A NO.41/2019 BY ISSUING A WRIT OF CERTIORARI.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The appellant in R.A. No.41/2019 on the file of the Senior
Civil Judge and Prl. JMFC., Tarikere (henceforth referred to as
‘the Appellate Court’) has filed this writ petition challenging an order dated 04.01.2023 by which an application (I.A. No.7) filed by him to withdraw the suit with liberty to file a fresh comprehensive suit for larger reliefs on the same cause of action, was rejected.
Siddappa. He claimed that neither the defendant No.1 nor his father had any right in the suit properties. Nonetheless, the defendant No.1 filed O.S. No.46/1981 before the Civil Judge, Tarikere for declaration and possession in respect of properties stated therein, which was dismissed. The defendant No.1 then filed an appeal in R.A. No.9/1985 before the District Court, Chikkamagaluru which was allowed and the suit was decreed. The father of the petitioner and others filed RSA No.315/1988 before this Court which was dismissed. The petitioner contended that though his father – Sri Mahadevappa pleaded that the suit properties were the self acquisition of his father – Sri Siddappa, but yet the suit was decreed on the premise that the father of the petitioner and his uncle – Sri Basappa had entered into a partition in the year 1977 on the directions of Sri Chandappa, the father of the defendant No.1.
NC: 2024:KHC:41423 WP No. 4981 of 2024
Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) to withdraw the suit - O.S No.157/2021 and sought liberty to file a fresh comprehensive suit for larger reliefs on the same cause of action. The Appellate Court rejected the application in terms of the impugned order on the ground that the assertions made in the affidavit accompanying the application did not satisfy the requirement spelt out under Order XXIII Rule 1 (3) (a) and (3) (b) of CPC. It also held that it did not find any formal defect in the suit - O.S No.157/2011 so as to grant liberty to the petitioner herein to file a fresh suit on the same cause of action.
No.1. This he contends was a formal defect which could be cured only by filing a fresh comprehensive suit for a declaration that the deceased defendant No.1 had fraudulently obtained a decree in R.A. No.9/1985 and R.S.A No.315/1988. He also contended that order XXIII Rule 1 of CPC specifically provided for withdrawal of a suit and the circumstances under which leave could be granted by the Trial Court to file a fresh suit on the same cause of action. He contended that the application filed by the petitioner satisfied the requirements to invoke Order XXIII Rule 1 of CPC., and therefore, the Appellate Court must have granted the relief sought in the application – I.A. No.7.
petitioner was aware of the judgment and decree passed in O.S. No.46/1981 as well as the judgment/s passed in R.A. No.9/1985 and R.S.A No.315/1988.
NC: 2024:KHC:41423 WP No. 4981 of 2024
the matter. In the present case, the Trial Court in O.S. No.157/2011 had held in elaborate terms that the judgment passed in O.S. No.46/1981 was binding not only upon the father of the petitioner but also on the petitioner. Therefore, there is no formal defect in the suit – O.S. No.157/2011 so as to grant liberty to file a fresh suit on the same cause of action. The Appellate court has considered the same earnestly and hence, the impugned order passed by it rejecting the application – I.A. No.7 does not warrant interference.
Consequently, the petition is dismissed.
Sd/(R. NATARAJ) JUDGE
SMA
List No.: 1 Sl No.: 50
1 issue framed by the court
Whether liberty to withdraw O.S. No.157/2011 and file a fresh suit on the same cause of action could be granted under Order XXIII Rule 1(3) CPC absent a formal defect in the suit.
2 provisions across 2 enactments
SHANKARAPPA S/O MAHADEVAPPA
MAHESHWARAPPA (SINCE DEAD BY LRS) - SMT. JAYAMMA
SHASHI KUMAR
SMT. VEENA
MADHUKUMAR
R. NATARAJ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
