Sri T R Rakesh Vs Sri T K Ramanjinappa

SRI THANWEER AHAMMED AGED ABOUT 63 YEARS S/O ABDUL SATTER SAB RA/T CENTURY BUILDERS AND INDUSTRIES PVT LTD NO.10/1, LAKSHMINARAYNA COMPLEX, PALACE ROAD, BENGLAURU - 560 052.

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MANIPAL ACADEMY OF HIGHER EDUCATION (MAHE)

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HC-KAR

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REPRESENTED BY ITS AUTHORISED SIGNATORY SRI. P. RAVINDRA PAI OFFICE AT CENTURY TOWERS KODIHALLI AIRPORT ROAD BENGALURU - 562 119.

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…RESPONDENTS

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(BY SRI CHANDAN, ADV., FOR R-3; R-2 SERVED - UNREPRESENTED; v/o/d 02.02.2023, NOTICE TO R-1 IS D/W)

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THIS WP FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 24.03.2022 ON I.A.NO.9 IN O.S.NO.744/2007 PASSED BY THE COURT OF CIVIL JUDGE (SR.DN) AND JMFC AT DEVANAHALLI AS PER ANNEXURE-E AND CONSEQUENTLY TO ALLOW I.A.NO.9 UNDER ORDER 23 RULE 1(3) R/W SECTION 151 OF CPC AS PRAYED FOR BY THE PETITIONER / PLAINTIFF IN O.S.NO.744/2007.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Articles 226 & 227 of the Constitution of India is filed by the plaintiffs with a prayer to set aside the order dated 24.03.2022 passed on I.A.No.IX in O.S. No.744 of 2007 by the Court of Civil Judge (Sr.Dn) & JMFC, Devanahalli.

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Heard the learned counsel for the parties.

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HC-KAR

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O.S.No.744 of 2007 is filed by the petitioners herein

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before the jurisdictional civil Court, Devanahalli against the respondents seeking the relief of partition and allotment of 2/3^rd share to the plaintiffs in the suit schedule property. Plaintiff nos.1 and 2 are the children of defendant no.1. Defendant no.2 is said to be the purchaser of the suit schedule property from defendant no.1. Defendant no.3, who is the subsequent purchaser was subsequently impleaded as defendant no.3 in the suit. In the said suit, the contesting defendants have filed their written statement opposing the suit claim. IA No.IX was filed by the plaintiffs under Order XXIII Rule 1(3) read with Section 151 of CPC with a prayer to permit the plaintiffs to withdraw the suit with liberty to file a fresh suit on the same cause of action against the defendants. The said application was opposed by defendant no.3 by filing objections. The trial court vide the order impugned dated 24.03.2022 rejected I.A.No.IX and being aggrieved by the same, the petitioners / plaintiffs are before this Court.

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Learned Senior Counsel appearing on behalf of the petitioners submits that by mistake two items of joint family

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property was not included in the schedule of O.S.No.744 of 2007. After coming to know about the defect in the plaint, the plaintiffs have filed I.A.No.IX seeking permission to withdraw the suit with liberty to file a fresh suit. The relief sought in I.A. No.IX, in no way prejudices or causes any hardship to the defendants. Even if the hardship is caused to the defendants, the same can be compensated monetarily. He submits that whenever there is a defect in the suit, in normal circumstances, the Court is required to permit the party to withdraw the suit with liberty to file a fresh suit on the same cause of action and in support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of V RAJENDRAN AND ANOTHER V ANNASWAMY PANDIAN (DEAD) THROUGH LEGAL REPRESENTATIVES KARTHYAYANI NATCHIAR - (2017) 5 SCC 63 and also on the judgment passed by this Court in the case of CHIKKAMADAIAH v NINGAMMA & ORS - KAR LJ 2017 (6) 239 .

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Per contra , learned counsel for the contesting respondents has opposed the prayer made in the petition. He

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submits that in the judgments on which reliance has been placed by the learned counsel for the petitioners, since it was found that the plaint contained formal defects, the plaintiffs were permitted to withdraw the suit with liberty to file a fresh suit and the same is not the fact situation in the present case. In the present case, the plaintiffs had filed an application under Order VI Rule 17 of CPC with a prayer to amend the plaint schedule by incorporating two left out properties. The said application was rejected by the trial Court and the order passed by the trial Court rejecting the application filed under Order VI Rule 17 of CPC by the plaintiff has been confirmed by this Court in W.P.No.3036 of 2021. Only with an intention to circumvent the said orders, an attempt is made to withdraw the present suit and to file a fresh suit on the same cause of action by including the aforesaid two properties in the proposed suit. Accordingly, he prays to dismiss the petition.

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O.S.No.744 of 2007 is filed by the petitioners herein seeking the relief of partition and separate possession of the suit schedule property which includes 4 items of lands in Survey No.19/1, 19/2, 19/3 and 19/5 situated at

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Tharabanahally Village, Jala Hobli, Bengaluru North Taluk. The plaintiffs have claimed 2/3^rd share in the aforesaid properties. Subsequently, the plaintiffs had filed an application under Order VI Rule 17 r/w Section 151 of CPC, with a prayer to amend the plaint by incorporating additional paragraphs and also to amend the schedule of the plaint by incorporating 2 additional properties bearing survey No.19/4 and Survey No.17/2, situated at Tharabanahally Village, Jala Hobli, Bengaluru North Taluk. This application was opposed by the contesting defendants by filing objections and the trial Court had rejected the said application and aggrieved by the same, the plaintiffs had approached this Court in W.P.No.3036 of 2021 which was dismissed on 23.02.2021. This Court while dismissing W.P.No.3036 of 2021 in paragraph no.4, has observed as follows:-

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"4. In the third paragraph of the plaint, a copy whereof is at Annexure-A the plaintiffs have admitted that there was earlier partition whereunder the subject property which is now sought to be introduced to the suit schedule is admitted to have fallen to the share of the first defendant; that being the position, the application seeking leave to

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amend the Plaint lacks bonafide apart from being hit by enormous delay & laches."

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From a reading of the aforesaid, it is apparent that

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plaintiffs had specifically admitted the plaint in O.S.No.744 of 2007 that the properties which were sought to be added in the schedule of the plaint were the properties which they had admitted in the plaint to have fallen to the share of their father, who is the defendant no.1 in the suit. Therefore, this Court has observed that prayer made by the plaintiffs lacks bonafide . After having suffered such an order, I.A.No.IX was filed before the trial Court seeking permission of the trial Court to withdraw

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the suit with liberty to file a fresh suit on the same cause of action. The averments found in the affidavit filed in support of the application would go to show that, the plaintiffs intend to file a fresh suit by including the aforesaid two left out properties which were not permitted to be included when a prayer was made by the plaintiffs to amend the plaint by including the said properties. What has not been permitted to be done in the pending suit cannot be permitted to be introduced in a fresh suit that too when a prayer made to

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amend the plaint was rejected by this Court with an observation that request made by the plaintiffs to amend the suit by including the left out properties lacks bona fide .

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The judgments in the case of V RAJENDRAN (supra) rendered by the Hon'ble Supreme Court has permitted the plaintiff to withdraw the suit with liberty to file a fresh suit considering the fact that the plaint contained a formal defect. Even in the case of CHIKKAMADAIAH (supra), this Court having found that the plaint contained formal defects has permitted the plaintiffs to withdraw the suit. But the same is not the fact situation in the present case.

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It is trite that judgments can be relied as precedents, if the same is applicable to the facts and circumstances of the case. Under the circumstances, I am of the opinion that the impugned order passed by the trial Court does not call for any interference.

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10. Accordingly, the petition is dismissed

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS/List No.: 1 Sl No.: 23

Sri T R Rakesh v. Sri T K Ramanjinappa

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Sri T R Rakesh v. Sri T K Ramanjinappa

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