Karnataka High Court
Manjunath S/O Basavaneppa Sajjan @ Teli vs Gouravva W/O Basavaneppa Sajjan @ Teli on 13 November, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13 T H DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
WRIT PETI TION NO.109228/2017 [GM-CPC]
BETWEEN:
MANJUNATH S/O BASAVANEPPA SAJJAN @ TELI
AGE:31 YEAS, OCC:AGRICULTURE
R/O BELLATTI, TQ:SHIRAHATTI,
DIST: GADAG
... PETITIONER
(BY SRI S. S. BAWAKHAN, ADVOCATE)
AND
1. GOURAVVA W/O BASAVANEPPA SAJJAN @ TELI,
AGE:85 YEARS, OCC:HOUSEHOLD,
R/O BANNIKOPPA, TQ:SHIRAHATTI,
DIST: GADAG.
2. RAJKUMAR S/O BABANNA KALA,
AGE: 42 YEARS, OCC:AGRICULTURE,
R/O BANNIKOPPA, TQ:SHIRAHATTI,
DIST: GADAG.
... RESPONDENTS
(BY SRI G. K. HIREGOUDAR, ADVOCATE FOR R-2
PETITION AGAINST R-1 IS DISMSISED AS NOT PRESSED)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
IMPUGNED ORDER DATED: 11.08.2017 PASSED BY THE
PRINCIPAL SENIOR CIVIL JDUGE, GADAG ON I.A.NO.19, IN O.S.
NO.65/2010 VIDE ANNEXURE-A AND CONSEQUENTIALLY
ALLOW IA NO.19 VIDE ANNEXURE-D.
THIS WRI T PETI TION COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Sri.S.S.Bawakhan the learned counsel for the petitioner files memo for dismissal of petition against the 1 s t respondent as not pressed.
2. Heard.
3. Respondent is the wife of Basavanneppa Sajjan. She filed OS.No.3/1993 against the present petitioner for declaration that, his adoption by her husband under the adoption deed dated 09.07.1992 is null and void. In OS No.3/1993 the Court held that, the adoption is invalid and the adoption deed is null and void. This Court confirmed that judgment in RFA No. 517/1999 on 09.12.2003.
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4. Thereafter petitioner filed OS No.65/2010 against the respondent before the Senior Civil Judge, Gadag for declaration that he is adopted son of Basavanneppa Son of Mallappa Sajjan and judgment and decree passed in OS.No.3/1993 does not bind him etc., In OS No.65/2010 he contended that, his father who was his guardian for that suit did not protect his interest, therefore the said judgment does not bind him. He further contended that, when he attained the majority he learned that fact.
5. The defendant contested the suit contending that, the claim of adoption of plaintiff is rejected in earlier suit OS No.3/1993 and RFA No.517/1999 and the suit is barred by principle of res-judicata.
6. When the OS.No.65/2010 was listed for arguments the petitioner filed IA No.19 under Order 7 Rule-10 read with Section 151 of CPC seeking leave to withdraw the suit with liberty to file a fresh suit. The only ground made out in the affidavit filed in support 4 of the application for seeking withdrawal is that in the suit on hand by oversight he did not include the properties which were subject matter of OS No.3/1993.
7. The trial Court vide order Annexure-A dated 11.08.2017 rejected the application on the following grounds :
[i] No sufficient grounds are made out for granting withdrawal with liberty to file a fresh suit on the same cause of action.
[ii] Application under Order 6 Rule-17 of C.P.C to include the very same properties by way of amendment came to be rejected and that order has attained finality.
8. The Court can grant leave to withdraw the suit with liberty to file a fresh suit on the same cause of action only on the following grounds :
[a] On the plaintiff satisfying the Court that suit must f ail by reason of some formal defect ; 5
[b] That there are sufficient grounds for allowing the application to institute the fresh suit in respect of same subject matter or part of it.
9. The language used in under Order-23 Rule-1(3) of CPC is that "Court may" grant leave to withdraw the suit on satisfaction of the aforesaid two conditions.
Therefore it is clear that even the plaintiff satisfying aforesaid two conditions does not make it mandatory for the Court to grant leave. Apart from that, the records show that this is the second round of litigation. The respondent filed OS No.3/1993 declaration for nullity adoption as well as the declaration with respect to the same properties. That was decreed in her favour. By the confirmation of that judgment in RFA No.517/1999 that finding attained finality.
10. As per the petitioner's own statement in this petition, he attained majority on 01.06.2004 and he has filed the suit six years thereafter. Further he filed amendment application to include properties, in 6 respect of which the defect is alleged. That came to be rejected and that order has also attained finality.
11. The trial Court considering all these facts passed the impugned order on sound and sustainable grounds. The said order warrants no interference of this Court. Therefore petition is dismissed with costs.
12. Respondent No.1 was 85 years old, she is reportedly died even before filing of this petition. The petitioner has not filed application before the trial court for bringing her heirs on record. Therefore case against her is abated.
13. Having regard to these facts the trial Court is directed to dispose of the suit within 2 months from the date of receipt of copy of this order.
Sd/-
JUDGE ckk/-