Karnataka High Court
Mr Daylynn G P Pinto vs Mrs Jayashree Ramdas Kamath on 21 March, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 49737 of 2016
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 49737 OF 2016 (GM-CPC)
BETWEEN:
MR DAYLYNN G P PINTO
S/O LATE MR/P J C PINTO,
AGED 35 YEARS,
R/AT WEST HORIZON,
1ST FLOOR ST MARYS COLONY,
MIRAMAR, PANJIM GOA
REP BY HIS POA HOLDER
M/S DAVIS F X PINTO
S/O LATE MR.P.J.C PINTO
AGE 40 YEARS
Digitally FLAT NO.C02, 6TH FLOOR,
signed by
NARASIMHA DEVDAN APARTMENTS, KADRI,
MURTHY MANGALURU-576 002
VANAMALA
Location: ...PETITIONER
HIGH
COURT OF
KARNATAKA
(BY MS. NEERAJA KARANTH, ADVOCATE)
AND:
MRS JAYASHREE RAMDAS KAMATH
W/O RAMDAS KAMATH,
MAJOR
R/AT FLAT NO.801,8TH FLOOR,
MOSACO APARTMENTS,
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WP No. 49737 of 2016
NEHRU AVENUE ROAD,
MANGALORE-575 003
D.K. DISTRICT
...RESPONDENT
(BY SRI. H LOKESH., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD.30.1.2015 ON I.A.NO.V FILED
UNDER ORDER 6 RULE 17 R/W SEC. 151 CPC AND
ORDER DTD.28.6.2016 PASSED ON I.A.NO.V FILED
UNDER ORDER 23 RULE 1[3] OF CPC BOTH IN
O.S.NO.124/2012 ON THE FILE OF II ADDL. CIVIL
JUDGE AND JMFC, MANGALORE, FILED AS ANNEX-A &
B RESPECTIVELY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN B GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner is the plaintiff in O.S.No.124/2012 on the file of the II Additional Civil Judge and JMFC, Mangaluru, Dakshina Kannada (for short, 'the civil Court'). The petitioner has impugned the civil Court's two orders, and these orders are dated 30.01.2015 and 28.06.2016. The civil Court by -3- WP No. 49737 of 2016 the first order has rejected the petitioner's application (I.A.No.V) under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the CPC'), and the civil Court by the next order has rejected the petitioner's application (I.A.No.V) under Order XXIII Rule 1(3) read with Section 151 of CPC.
2. The civil Court has rejected the petitioner's first application viz., the application for amendment of the plaint primarily on the ground that the petitioner, in proposing the amendment, is incorporating a new cause of action and that would be impermissible in law. The civil Court, insofar as the second application for leave to withdraw the suit with liberty to file a fresh suit on the same cause of action, has opined that the plaint does not suffer from any formal defect and the application is filed only to get over the rejection of the application for amendment of the plaint.
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3. The petitioner has filed the suit in O.S.No.124/2012 for injunction against the respondent from putting up any construction in the immovable property described in the schedule appended to the plaint viz., land in R.S.No.212 (T.S. No.522) measuring 1 acre 45 cents of Thota Village, Jeppu Ward, Mangaluru City Corporation (the subject property) and for further relief such as, injunction against the respondent from putting up any structure in this property until the respondent's portion out of schedule property is demarcated after proper survey and for injunction against obstructing the petitioner's right to access a road within the subject property and to remove the obstructions.
4. According to the petitioner, Sri. Ramappa Karkere originally owned the land in R.S.No.212 (T.S.No.522) of Thota Village, Jeppu Ward, Mangaluru City Corporation, and Sri. Ramappa Karkere has transferred this larger extent in two -5- WP No. 49737 of 2016 portions. An extent measuring 19 cents is transferred in favour of the petitioner's grandfather, Sri. F.X.D Pinto, and the remaining extent in favour of another. The respondent has purchased the remaining extent from such other under the sale deed dated 05.09.2011 and it is currently numbered as T.S. No.522/B. This extent of 19 cents purchased by the petitioner's grandfather was not partitioned until the suit for partition commenced in O.S.No.1018/2009 culminated with a decree on compromise on 27.01.2010, and in terms of this compromise, the petitioner and his brother are allowed 19 cents. The petitioner further contends that in the sale deed executed in favour of the respondent's vendor [the original owner, Sri. Ramappa Karkere] has categorically stipulated that the private road within this larger land in T.S.No.522 would be for the exclusive use of the owners of 19 cents.
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5. Ms. Neeraja Karanth, the learned counsel for the petitioner when queried, submits that the petitioner would not pursue both the applications, and if indulgence is shown insofar as one of the applications on merits, the petitioner would not press the other application. When queried further Ms. Neeraja Karanth submits that the formal defect in the suit is borne out by the fact that the petitioner, who along with his brother claims title to 19 cents in the larger extent, has described the entire extent of 1 acre 45 cents, and any amendment to the plaint, as now proposed in the amendment application, would require detailed alterations to the description of the property with necessary changes even in the schedule. As such, the petitioner would prefer to pursue the grievance as against the civil Court's second order dated 28.06.2016 whereby the petitioner's application under Order XXIII Rule 1(3) read with Section 151 of CPC is rejected. -7- WP No. 49737 of 2016
6. Ms. Neeraja Karanth submits that the civil Court is persuaded to reject the application for leave to withdraw the suit under Order XXIII Rule 1(3) read with Section 151 of CPC only because of a decision of the High Court of Himachal Pradesh in the case of Promila Bakshi and Others Vs. Ashok Bhatia and Others reported in AIR 2007 Himachal pradesh
14. The facts of the present case are totally different. The High Court of Himachal Pradesh has opined that there was no formal defect as it was obvious that the application under Order XXIII of CPC was filed only because the trial Court had rejected the proposal to amend certain additional facts. If there is any similarity with the present case, it is only because an application for amendment is filed before an application under Order XXIII Rule 1(3) read with Section 151 of CPC.
7. It is obvious on reading of the plaint and the amendment application that the petitioner, who -8- WP No. 49737 of 2016 has described the entire extent of 1 acre 45 cents in the aforesaid T.S.No.522 while asserting ownership of 19 cents and seeking permanent injunction just against interference with this extent and against obstruction against exclusive road in the larger property, has described the entire extent as aforesaid without necessary demarcation of the respective extents. Presumably, this is because there is no proper survey for demarcation of 19 cents and the remaining extent admittedly owned by the respondent. The civil Court in opining that there is no formal defect has overlooked these material circumstances.
8. This Court in the peculiar circumstances of this case is of the considered view that the civil Court has erred in applying the decision of the High Court of Himachal Pradesh to the facts of this case and in opining that there is no formal defect. The civil Court ought to have, as aforesaid in the peculiarities of the case, allowed the petitioner's application under -9- WP No. 49737 of 2016 Order XXIII Rule 1 (3) read with Section 151 of CPC with necessary leave. Hence, the following:
ORDER The petition as against the civil Court's first order dated 30.01.2015 stands dismissed as withdrawn. The civil Court's next order dated 28.06.2016 is quashed and the petitioner's application under Order XXIII Rule 1(3) read with Section 151 of CPC is allowed with liberty to the petitioner to file fresh suit on the same cause of action but subject to all just exceptions.
The petitioner shall place a certified copy of this Order with the civil Court for formal orders on closure of the suit.
Sd/-
JUDGE RB