Karnataka High Court
Sanaulla Sheriff vs Sri Dandu Mariamma Temple Trust on 15 November, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 520 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 520 OF 2008 (RES)
BETWEEN:
1. SANAUALLA SHERIFF
S/O LATE SRI. HAJI ABDUL KHADER
AGED ABOUT 70 YEARS
NO.25, VENKATASWAMY NAIDU ROAD
SHIVAJINAGAR, BANGALORE-560051
DEAD BY HIS LRS
1(a) MR. ZIAULLA SHARIFF
S/O LATE SANAULLA SHARIFF
AGED ABOUT 52 YEARS
R/A No.282, NEHRUPURAM
THIMMAIAH ROAD
BENGALURU-560051.
Digitally 1(b) MR. FAYAZ PASHA
signed by R
MANJUNATHA S/O LATE SRI. HAJI ABDUL KHADER
Location: AGED ABOUT 54 YEARS
HIGH COURT No.25, VENKATASWAMY NAIDU ROAD
OF
KARNATAKA SHIVAJINAGAR,
BANGALORE-560051
2. NAVEED PASHA
S/O LATE NAWAB JAN
AGED ABOUT 42 YEARS
NO.1213, 4TH CROSS,
GANDHINAGAR
KADUGONDANAHALLI
BANGALORE-560045
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RFA No. 520 of 2008
3. WAHEED PASHA
S/O LATE NAWAB JAN
AGED ABOUT 40 YEARS
NO.1213, 4TH CROSS,
GANDHINAGAR
KADUGONDANAHALLI
BANGALORE-560045
...APPELLANTS
(BY SRI H H KALADAGI, SRI S.M.G. AZAM AND
SRI.P. VEERABHADRAPPA, ADVOCATES)
AND:
1. SRI DANDU MARIAMMA TEMPLE TRUST
SHIVAJI CIRCLE
SHIVAJINAGAR
BANGALORE-560051
BY ITS TRUSTEES
2. SRI. V.A. MOHANARANGAN B.A.B.L.,
S/O SRI. V.T. ARMUGHAN
AGED ABOUT 84 YEARS
NO.24, 9TH MAIN, 4TH BLOCK
JAYANAGAR, BANGALORE
3. SRI. P.V. VENKATESAN
S/O SRI. VENKATESHWARA IYER
AGED ABOUT 80 YEARS
NO.51/6, KOTHANDARAM LAYOUT
BANGALORE-560042
4. SRI. V.R. SRINIVASAN
S/O SRI. V. RAMUNAJA MODALIAR
AGED ABOUT 83 YEARS
NO.36, LAKSHAMAN MUDALIAR STREE
BANGALORE-560001.
5. SRI. M.S. HARI PRASAD
S/O SRI. M.L. SATHYA MURTHY
AGED ABOUT 43 YEARS
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RFA No. 520 of 2008
NO.6, GOKULAM, M.A.H. ROAD
TASKER TOWN
BANGALORE-560017
6. SRI. SUNDARESH
S/O LATE P.KOTHANDA PANI
AGED ABOUT 51 YEARS
G-269, OLD TOWNSHIP
HAL COLONY
BANGALORE-560017
7. SRI. JAI KUMAR
S/O SRI. MOHAN RAM
AGED ABOUT 47 YEARS
NO.7, 2ND CORSS, N,K PALYAM
SHIVAJINAGAR,
BANGALORE-560 017
8. SRI. M. DORAISWAMY
S/O SRI MOHAN NAIDU
AGED ABOUT 48 YEARS
NO.31, OLD CEMETERY RIOAD
SHIVAJI NAGAR,
BANGALORE-560 051.
9. SRI. K. LOKESH REDDIAR
S/O V. KUPPUSWAMY REDDY
AGED ABOUT 57 YEARS
NO.59/11, CHICK BAZAR ROAD
SHIVAJINAGAR
BANGALORE-560051
R3 TO R9 ARE DELETED AS PER
ORDER DTD. 30.03.2023
10. SMT. SAROJINI BALAASUNDARAM
D/O JAYASEELAN
AGED ABOUT 52 YEARS
NO.42, DICKENSON ROAD
BANGALORE-560051
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RFA No. 520 of 2008
11. SRI. JAGANATH PILLAI
S/O LATE CHINNASWAMY
AGED ABOUT 81 YEARS
R/AT 581, 6TH A MAIN
3RD STAGE, 3RD BLOCK
BASAVESHWARA NAGAR
BENGALURU-560079
12. SMT. MAHESHWARI VIJAYASARATHY
W/O VIJAYASARATHY
AGED ABOUT 49 YEARS
R/AT 36, LAKSHMANA MUDALIAR STREET
SHIVAJINAGAR
BENGALURU-560001.
13. SRI. S. GOVINDRAJ
S/O LATE K.A. SHANMUGAM
AGED ABOUT 73 YEARS
R/AT 28, KALIAMMAN TEMPLE
SULTHANGUNATA ROAD
SHIVAJINAGAR,
BENGALURU-560051.
14. SRI. M. MADANA GOPAL B.A.LL.B
S/O V.A.MOHANRANGAM
AGED ABOUT 66 YEARS
R/AT 93/2, 93/3
CHARLES CAMPBELL ROAD
COX TOWN, BENGALURU.
15. SRI. D. DAMODARAN
S/O LATE K.DEVARAJULU NAIDU
AGED ABOUT 75 YEARS
R/AT 11 & 12, 8TH MAIN
RAMAMURTHY NAGAR
BENGALURU-560001.
16. SRI. ABU
S/O CHINNAPPA
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RFA No. 520 of 2008
AGED ABOUT 55 YEARS
R/AT 319, 9TH D MAIN
HBR LAYOUT, KALYAN NAGAR
BENGALURU-560043.
17. SRI. K. VIJAYA SHEKAR
S/O LATE K.A. ANJANEYULU
AGED ABOUT 54 YEARS
R/AT 30, A 2ND STREET
OLD CEMETERY ROAD
SHIVAJINAGAR
BENGALURU-560051
R11 TO R17 ARE ADDED AS
PER ORDER DTD.30.03.2023.
...RESPONDENTS
(BY SRI.M.L. DAYANAND KUMAR, ADVOCATE
SRI. M.D. RAGHUNATHA, ADVOCATE FOR R1 TO R17
V/O DTD. 30/03/2023 R3 TO R9 ARE DELETED)
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF
THE CPC AGAINST THE JUDGMENT AND DECREE DT. 21.1.08
PASSED IN OS NO.15126/1999 ON THE FILE OF THE XXVI
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, MAYOHALL,
BANGALORE, DECREEING THE SUIT FOR EJECTMENT AND ETC.,
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Counsel for the respondents/plaintiffs files an application under Order 23 Rule 1 (3) (b) r/w Section 151 CPC.
2. Copy furnished to the counsel for the appellants. Taking note of the fact that the plaintiff is a temple trust and framed the suit, had some inherent technical defects. Since, the suit -6- NC: 2023:KHC:41488 RFA No. 520 of 2008 would fail on the ground of technicalities and not on merits; it has become just and necessary for this Court to exercise its power under Order 23 Rule 1 CPC.
3. Counsel for the appellants however submits that in the event of the Court permitting to withdraw the suit and files a fresh suit, all available defence to the appellants/defendants be reserved to be urged in the intended suit.
4. It goes without saying that such a liberty is always available for the appellants/defendants. Nevertheless to avoid confusion, if any, at later point of time in the intended suit, necessary observations also need to be made while allowing the application to withdraw the present suit and file fresh suit.
5. Accordingly following order is passed:
ORDER Application is allowed.
Plaintiffs are permitted to withdraw the suit and file fresh suit in accordance with law on the very same cause of action.
It is made clear that all the defence available for the appellants/defendants are kept open to be urged in the intended suit in accordance with law and Trial -7- NC: 2023:KHC:41488 RFA No. 520 of 2008 Court shall dispose of the intended suit strictly in accordance with law, not influenced by the observations, if any, made by the learned Trial Judge in the impugned judgment.
If a fresh suit is filed by the plaintiffs, taking note of the fact that the lis was pending between the parties for a consideration length of time, the suit be expedited.
The amount in deposit before this Court shall be transferred to the Trial Court with a further direction to keep the same in fixed deposit for the successful party to withdraw the same with accrued interest.
Sd/-
JUDGE MR