Karnataka High Court
Sri Marigowda vs Sri Puttaswamygowda on 2 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 21074 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 21074 OF 2021 (GM-CPC)
BETWEEN:
1. SRI. MARIGOWDA,
SON OF LATE THIMMANNAGOWDA,
AGED ABOUT 71 YEARS,
RESIDING AT CHIKKALAHALLI VILLAGE,
SATHANUR HOBLI,
KANAKAPURA TALUK,
RAMANAGARAM DISTRICT - 562 126.
2. SRI. SHIVALINGEGOWDA,
SON OF LATE THIMMANNAGOWDA,
AGED ABOUT 61 YEARS,
RESIDING AT CHIKKALAHALLI VILLAGE,
SATHANUR HOBLI, KANAKAPURA TALUK,
Digitally signed
by SUCHITRA M J RAMANAGARAM DISTRICT - 562 126.
Location: High ...PETITIONERS
Court of
Karnataka
(BY SRI. SIDDAMALLAPPA P.M., ADVOCATE)
AND:
1. SRI. PUTTASWAMYGOWDA,
SON OF LATE THIMMANNAGOWDA,
AGED ABOUT 71 YEARS,
RESIDING AT CHIKKALAHALLI VILLAGE,
SATHANUR HOBLI, KANAKAPURA TALUK,
RAMANAGARAM DISTRICT - 562 126.
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WP No. 21074 of 2021
2. SRI. CHIKKATHAMMAIAH,
SON OF LATE THIMMANNAGOWDA,
AGED ABOUT 65 YEARS,
RESIDING AT CHIKKALAHALLI VILLAGE,
SATHANUR HOBLI, KANAKAPURA TALUK,
RAMANAGARAM DISTRICT - 562 126.
3. SMT. SIDDAMMA @ THAYAKKA,
DAUGHTER OF LATE THAMMANNAGOWDA,
WIFE OF LINGEGOWDA @ THAMMAIAH,
AGED ABOUT 67 YEARS,
RESIDING AT AREHOSAHALLI VILLAGE,
SATHANUR HOBLI,
KANAKAPURA TALUK,
RAMANAGARAM DISTRICT - 562 126.
4. SMT. JAYAMMA,
DAUGHTER OF LATE THAMMANNAGOWDA,
WIFE OF MARIGOWDA,
AGED ABOUT 65 YEARS,
RESIDING AT SATHANUR VILLAGE,
NEAR POST OFFICE, SATHANUR HOBLI,
KANAKAPURA TALUK,
RAMANAGARAM DISTRICT - 562 126.
5. SMT. GOWRAMMA,
DAUGHTER OF LATE THAMMANNAGOWDA,
WIFE OF CHOODEGOWDA @ KINNAPPA,
AGED ABOUT 61 YEARS,
RESIDING AT KOKKAREHOSAHALLI VILLAGE,
UYYAMBALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARAM DISTRICT - 562 126.
6. SMT. YASHODAMMA,
DAUGHTER OF LATE THAMMANNAGOWDA,
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WP No. 21074 of 2021
WIFE OF SHTVARAJEGOWDA,
AGED ABOUT 58 YEARS,
RESIDING AT KADAHALLI VILLAGE,
SATHANUR HOBLI,
KANAKAPURA TALUK,
RAMANAGARAM DISTRICT - 562 126.
...RESPONDENTS
(BY R2 - SERVED,
VIDE ORDER DATED: 14/6/2022 R1 - HELD SUFFICIENT
VIDE ORDER DATED: 27/1/2023
NOTICE TO R3 TO R6 IS DISPENSED WITH)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DTD. 13.08.2020 PASSED IN O.S.NO. 297/2010 ON I.A. NO.6,
BY THE LEARNED I ADDITIONAL CIVIL JUDGE AND JMFC,
KANAKAPURA ON THE APPLICATION FILED UNDER ORDER-23,
RULE-1 OF CODE OF CIVIL PROCEDURE AS PER ANNEXURE-E
AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition filed by the petitioners-plaintiffs is directed against the impugned order dated 13.08.2020 in O.S.No.297/2010 on the file of the I Additional Civil Judge and JMFC, Kanakapura, passed on I.A.No.6. The said application was filed by the petitioners-plaintiffs under Order XXIII Rule 1 read with Section 151 of CPC, seeking permission to withdraw -4- WP No. 21074 of 2021 the suit with liberty to file fresh suit, was rejected by the trial Court.
2. Heard the learned counsel for the petitioners and perused the material on record.
3. The material on record discloses that the petitioners-plaintiffs instituted the aforesaid suit for partition and separate possession of their legitimate share in the suit schedule properties and for other reliefs. The same is being contested by the respondents/defendants. During the pendency of the suit, the petitioners/plaintiffs filed instant application- I.A.No.6 under Order XXIII Rule 1 read with Section 151 of CPC, seeking permission to withdraw the suit by reserving liberty to file a fresh suit inter-alia contending that there are several formal defects in the suit, which needed to be rectified, and that the same is possible only by instituting proper and comprehensive fresh suit by withdrawing the present suit. Though the application-I.A.No.6 was not opposed by the contesting respondents-defendants, the trial Court proceeded to pass the impugned order rejecting I.A.No.6. Aggrieved by -5- WP No. 21074 of 2021 the same, the petitioners are before this Court, by way of present petition.
4. A perusal of the impugned order passed by the trial Court will indicate that the same is contrary to well settled principles of law covering under Order XXIII Rule 1 of CPC and the trial Court failed to consider and appreciate that the respondents/defendants have categorically stated before the trial Court that they had no objection to allow I.A.No.6 which was sufficient to show that no prejudice would be caused to them, if the petitioners are permitted to withdraw the suit and granted liberty to institute a fresh suit, in accordance with law.
5. Under these circumstances, I am of the considered opinion that the trial Court committed an error in rejecting the application (I.A.No.6) filed by the petitioners-plaintiffs which has clearly occasioned failure of justice warranting interference by this Court in the present petition.
6. In the result, I pass the following:-
ORDER
(i) The petition is hereby allowed. The impugned order dated 13.08.2020 in -6- WP No. 21074 of 2021 O.S.No.297/2010 on the file of the I Additional Civil Judge and JMFC, Kanakapura, is hereby set-aside;
(ii) I.A.No.6 filed by the petitioners-plaintiffs under Order XXIII Rule 1 read with Section 151 of CPC, is hereby stands allowed;
Sd/-
JUDGE SMJ List No.: 1 Sl No.: 45