Karnataka High Court
Shivappa Adiveppa Choudhari vs Basappa Adiveppa Choudhari on 31 October, 2012
Author: A.S.Bopanna
Bench: A.S.Bopanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 31ST DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE A.S.BOPANNA
CRP NO.1121/2011
BETWEEN:
1. SHRI.SHIVAPPA ADIVEPPA CHOUDHARI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587 313, DIST: BAGALKOT.
2. SHRI.ISHWAR ADIVEPPA CHOUDHARI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587 313, DIST: BAGALKOT.
3. SHRI.DUNDAPPA ADIVEPPA CHOUDHARI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587 313, DIST: BAGALKOT.
... PETITIONERS
(BY SRI.M.G.NAGANURI, ADV)
AND:
1. SHRI.BASAPPA ADIVEPPA CHOUDHARI,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587 313, DIST: BAGALKOT.
2. SHRI.SHANKAR ADIVEPPA CHOUDHARI,
AGE: 52 YEARS, OCC: AGRICULTURE,
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R/O WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587 313, DIST: BAGALKOT.
3. SMT.GOURAWWA W/O ADIVEPPA CHOUDHARI,
AGE: 88 YEARS, OCC: AGRICULTURE & HOUSEHOLD
R/O WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587 313, DIST: BAGALKOT.
4. SMT.BAGAWWA W/O MALLAPPA HANAGANDI,
AGE: 67 YEARS, OCC: HOUSEHOLD,
R/O WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587 313, DIST: BAGALKOT.
... RESPONDENTS
(BY SRI.B.S.KAMATE, ADV. FOR R1 TO R4)
THIS CRP IS FILED UNDER SECTION 115 OF CPC, 1908,
AGAINST THE ORDER DATED 14.10.2011 PASSED IN
O.S.NO.17/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MUDHOL, REJECTING THE I.A.NO.II FILED U/23 RULE 1(3) R/W
SECTION 151 OF CPC.
THIS CRP COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court assailing the order dated 14.10.2011 passed by the trial Court on I.A.No.II filed under Order 23 Rule 1(3) r/w Section 151 of CPC. By the said application, the petitioners herein had sought leave to withdraw the suit with liberty to file fresh suit on the same cause of action. The Court below has rejected the said application.
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2. Heard the learned counsel for the parties and perused the petition papers.
3. The learned counsel for the petitioner while assailing the order would contend that the Court below has committed material irregularity inasmuch as the trial Court has rejected the application only on the ground that there is no formal defect so as to permit the plaintiffs to withdraw the suit. It is therefore contended that it is the discretion of the Court to allow the application even on other grounds and in the instant case, since the right of the defendants has not been affected in any manner as there are no finding rendered one way or the other, the trial Court should have permitted the plaintiffs and should have been given the liberty to file fresh suit is his contention. Learned counsel for the respondents would however seek to justify the order passed by the Court below.
4. In the light of the contentions which have been put forth, it is no doubt true that the Court can exercise its 4 discretion keeping in view the facts and circumstances of the case while permitting withdrawal of the suit. Irrespective of the fact whether there is a formal defect or the plaintiffs are seeking withdrawal for any other reason, what is to be kept in view is that the plaintiffs are seeking leave to file the suit on the very same cause of action. If that is the position, the observation made by the Court below that the plaintiffs can still amend the plaint, in my view would be justified.
5. Therefore, keeping these aspects in view, in my opinion at this juncture though I see no reason to interfere with the impugned order, the petitioner-plaintiffs need not file a separate application seeking amendment to the plaint. The observations made by the trial Court itself has conferred, the liberty to amend the plaint. Further the petitioner is granted the liberty to amend including to bring the subsequent events on record in the plaint. Such liberty would be available to the plaintiffs so as to file the amended plaint within a period of 15 days from the date of furnishing of a certified copy of this 5 order before the trial Court. The trial Court shall permit the petitioner-plaintiffs to amend accordingly and thereafter grant liberty to the defendants to file additional written statement if they seek to do so. That apart, the learned counsel for the petitioners also contends that in view of subsequent developments, the additional defendants are required to be impleaded. In that regard, the petitioner is reserved the liberty to file an appropriate application which would be considered after notifying the proposed respondents therein.
With the above liberty, the petition stands disposed of.
Sd/-
JUDGE MBS/-