Karnataka High Court
Smt C Jayanthi vs Mrs Nalini Muniraj on 6 September, 2022
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CRP NO. 364 OF 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CIVIL REVISION PETITION NO.364 OF 2022
BETWEEN:
1. SMT C JAYANTHI
W/O SRIDHAR RAMASWAMY
AGED ABOUT 50 YEARS
R/AT NO. 3314,
13TH MAIN, 7TH CROSS
HAL II STAGE, INDIRANAGAR
BANGALORE 560 008
2. SRI VARUN SAI SRIDHAR
S/O SRIDHAR RAMASWAMY
26 YEARS
R/AT NO. 3314,
13TH MAIN, 7TH CROSS
HAL II STAGE, INDIRANAGAR
BANGALORE 560 008
Digitally signed by
LAKSHMINARAYAN N
Location: High Court of
...PETITIONERS
Karnataka
(BY SRI. GANESH S V., ADVOCATE)
AND:
1. MRS NALINI MUNIRAJ
AGED ABOUT 36 YEARS
W/O R. MUNIRAJ
R/AT NO. 10/3
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CRP NO. 364 OF 2022
BYRAVESWARA NILAYA
13TH MAIN, 1ST CROSS,
HAL 2ND STAGE, INDIRANAGAR,
BANGALORE 560 008
2. MR. R. MUNIRAJ
S/O B.M. RAMAIAH
38 YEARS
R/AT NO. 10/3
BYRAVESWARA NILAYA
13TH MAIN, 1ST CROSS
HAL 2ND STAGE,
INDIRANAGAR,
BANGALORE 560 008
...RESPONDENTS
THIS CRP FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 12.08.2022 PASSED ON
I.A.III IN OS.NO.3779/2010 ON THE FILE OF THE C/C.
XXXVII ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE. REJECTING THE I.A.III FILED UNDER ORDER
23 RULE 1 R/W. SECTION 151 OF CPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Civil Revision Petition is filed by the plaintiffs in OS No.3779 of 2010 on the file of XXXVII Additional Civil City and Sessions Judge, Bengaluru, challenging the order -3- CRP NO. 364 OF 2022 dated 12th August, 2022 passed on IA.III, dismissing the Application.
2. For the sake of convenience, the parties in this petition are referred to with their status and rank before the trial Court.
3. Brief facts of the case are that, plaintiffs have filed Original Suit No.3779 of 2010 on the file of the trial Court seeking relief of partition and separate possession in respect of the suit schedule property. The suit was contested by the defendants and at the time of the cross- examination of the defendants, plaintiffs have filed Application in IA.III under Order XXIII Rule 1 read with Section 151 of Code of Civil Procedure to permit them to withdraw the suit reserving liberty to re-agitate the same at the later stage. The said application was opposed by the defendants. The trial Court, after considering the material on record, by its order dated 12th August, 2022, -4- CRP NO. 364 OF 2022 rejected the application. Feeling aggrieved by the same, the plaintiffs have preferred this revision petition.
4. Sri S.V. Ganesh, learned counsel appearing for the petitioners contended that it is the right of the parties as dominus litus and the plaintiffs have made out a sufficient ground under Order XXIII Rule 1 of Code of Civil Procedure for withdrawal of suit, with liberty to file a fresh suit and therefore, he contended that the finding recorded by the trial Court is incorrect and accordingly, he sought for interference of this Court.
5. In the light of the submission made by the learned counsel appearing for the petitioner, I have carefully examined the impugned order. Undisputably, the relief sought for by the plaintiff is for partition and separate possession in respect of the suit schedule property. Order XXIII of Code of Civil Procedure provides for Withdrawal of the Suit. The language employed under Order XXIII of the Code of Civil Procedure enumerates the -5- CRP NO. 364 OF 2022 satisfaction of the Court with regard to the formal defect in the suit or sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit. The second aspect for permitting withdrawal of the suit is, if the plaintiff has abandoned the suit against the defendants. It is well established principle in law that the provision under Order XXIII of Code of Civil Procedure is based on the principle of "Public Policy". It connotes that the litigant should not be allowed to abuse the process of Court and, on the other hand, the plaintiff cannot be permitted to defeat the accrued right of the defendant. In the circumstances and factual aspects of the present case, applying the said principle to the case on hand, the satisfaction arrived at by the learned trial Judge as per paragraphs 11 and 13 of the impugned judgment is just and proper. The plaintiff, in similar situation, has withdrawn the suit in OS No.3537 of 2010 and OS No.3305 of 2010. In that view of the matter, the petitioner has not made out a case for sufficient ground for -6- CRP NO. 364 OF 2022 withdrawal of the suit with liberty as prayed for in the application. The Hon'ble Supreme Court in a catena of decisions observed that, "there has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it, bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely." In the present case, the suit is one for seeking partition and separate possession of the suit schedule property. The application in IA.III has been filed at the belated stage, i.e. at the time of the cross-examination of the defendants and in that view of the matter, the arguments advanced by the learned counsel appearing for the petitioner cannot -7- CRP NO. 364 OF 2022 be accepted. Though the learned counsel for the petitioner argued that the plaintiffs have discovered the registered deed of declaration dated 22nd August, 2013, and issued notice to defendants 2 and 3 calling upon them to cancel the sale deed, however, careful examination of the objections filed by the defendants would indicate that the plaintiffs were fully aware about the rights of the defendants at the time of accepting the termination notice dated 01st April, 2010 and therefore, I do not find any merit in the submission made by the learned counsel appearing for the petitioner. In the result, petition is dismissed as devoid of merits.
Sd/-
JUDGE LNN