Karnataka High Court
Ufm Sudarshan Manjunatha Hegde vs Ufm Satyanarayan Govind Hegde on 14 August, 2020
Author: V.Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.S.A.NO.5125 OF 2013 (PAR & SEP. POS)
BETWEEN
UFM SUDARSHAN MANJUNATHA HEGDE,
A/A: 46 YEARS, RYOT,
R/O KADBAL VILLAGE,
KADBAL, TQ: SIRSI.
... APPELLANT
(BY SRI. V. G. BHAT, ADVOCATE)
AND
1. UFM SATYANARAYAN GOVIND HEGDE,
AGE: 79 YEARS, OCC: RYOT,
R/O KADBAL VILLAGE,
KADBAL, TQ: SIRSI.
2. VENKATRAMAN SEETARAM HEGDE
AGE: 65 YEARS, OCC: RYOT,
R/O KADBAL VILLAGE,
KADBAL, TQ: SIRSI
3. GOPAL GOVIND HEGDE,
AGE: 66 YEARS, OCC: RYOT,
R/O KADBAL VILLAGE,
KADBAL, TQ: SIRSI
... RESPONDENTS
(BY SRI. ANANT HEGDE, ADV., AND
SRI. VISHWANATH HEGDE, ADV.,)
2
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN
R.A.NO.60/2008 BY THE FAST TRACK COURT, SIRSI, DATED
12.12.2011 AND BE PLEASED TO DECREE THE SUIT OF THE
PLAINTIFF BY ALLOWING THIS APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE (JR.DN)
SIRSI IN O.S.NO.35/1999 DATED 04.08.2008 IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS RSA COMING ON FOR ADMISSION, THIS DAY, COURT
MADE THE FOLLOWING:
ORDER
The learned counsel for the appellant Sri. V. G. Bhat, present. He files a memo. The memo reads as under:
Memo of withdrawal with liberty.
Herein the advocate for the appellant respectfully submits as under, This appeal is filed against the judgment and decree dated 4-8-2008 passed in OS No.35/1999 by the Court of Prl.Civil Judge Sirsi which was confirmed in R.A.No.60/2008 by Fast Track Court Sirsi by its judgment and decree dated 12-12-2011. It is submitted that, during the pendency of this appeal the 3 respondent no.3 was expired and the respondent no.1 vacated the house situated in the suit survey nos by constructing a house at different place. Since the suit of the plaintiff is for permanent injunction and the suit came to be dismissed by the Courts below on the ground that the suit properties are jointly owned by the parties to the extent specified in the revenue records, in view of subsequent developments the appellant intends to withdraw the appeal with liberty to file comprehensive suit for declaration in respect of his ownership rights.
Therefore, it is most humbly prayed to permit the appellant to withdraw the appeal with liberty to file a comprehensive suit, in the ends of justice.
2. This second appeal arises out of a decree of injunction passed by the Trial Court in O.S.No.35/1999 confirmed in R.A.No.60/2008.
3. It is needless to emphasize that the cause of action to file an injunction suit is a continuous cause of 4 action. If at all if the plaintiff were to establish that there is a subsequent interference he can file one more suit.
4. Thus, the liberty as sought for by the learned counsel for the appellant cannot be granted by this Court in this case.
5. However, it is made clear that withdrawal of the appeal by the appellant shall not affect his rights, if any, in a future litigation, if he is able to establish independent cause of action other than involved in the present appeal. Hence, the following order is passed.
ORDER Memo is accepted. Appeal is dismissed as withdrawn.
No order as to costs.
Sd/-
JUDGE yan