IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT WRIT PETITION NO. 51031/2019 (GM-CPC) BETWEEN :
Ashok Abraham Kuriakose Aged about 46 years, S/o Late C.T. Kuriakose R/at No.80/10, Hulimavu Bannerughatta Road, Bangalore-560 076 … PETITIONER (By Sri C.M. Nagabhushan, for Sri K.S. Uday., Advocate) AND :
1. Anjinappa, S/o Late Gulipapaiah Aged about 72 years 2. Smt. Pillamma W/o Late Krishnappa Aged about 58 years 3. K. Gopal, S/o Late Krishnappa, Aged about 46 years 4. Kaverappa S/o. Late Gullapapaiah Aged about 64 years 5. G. Srinivas S/o. Late Krishnappa Aged about 55 years 1 to 5 are residing at Chudasandra Village, Sarjapur Hobli, Anekal Taluk-562 106 6. Sri Krishnappa Aged about 78 years S/o. Late Konjappa R/at Ejipura Village, Koramangala Bangalore-560 034 7. N. Sudarshan, Aged about 66 years S/o. N. Krishnamurthy, R/at No.7/1, 8th Main, 13th Cross, Malleshwaram, Bangalore-56 0 003 8. S. Thyappa, Aged about 68 years S/o. Late Sonnappa, R/at No.98, Junnasandra Village, Carmalaram Post, Bangalore East Taluk-560 084 … RESPONDENTS (By Sri S.K. Acharya, Advocate for R2 and R3) ---
This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside the impugned order dated 25.09.2018 passed by Senior Civil Judge, Anekal in O.S. No.799/2009 on I.A. at Annexure-R.
This Petition coming on for Preliminary Hearing this day, the Court passed the following;
O R D E R Petitioner being the 4th defendant in a suit for declaration in O.S. No.799/2009 is invoking the writ jurisdiction of this Court for assailing the order dated 25.09.2015, a copy whereof is at Annexure-E, whereby the application filed by the respondent/plaintiff under Order-XXIII Rule 1 of Code of Civil Procedure, 1908, having been favoured he is permitted to withdraw the suit with leave to re-agitate on the same cause of action.
2. The learned counsel for the Ceavtor/respondent vehemently resists the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of a considered opinion that the leave ought not to have been granted by the Court below inasmuch suit is of the year 2009; the pleadings having been completed long ago, the trial itself is at an advanced stage; the withdrawal of a long fought suit coupled with leave to institute a fresh one would result into enormous prejudice to the petitioners; cost too is no recompense in such matters.
In the above circumstances, this writ petition succeeds and the impugned order is set at naught.
This Court places on record the fair submission of the learned counsel for the petitioners that whatever arguable defects based on which plaintiffs had sought for leave to withdraw suit can be remedied by way of amendment, and that the court below shall consider the request for amendment if made, leniently.
A request is made to the learned trial Judge to try and dispose of the suit preferably within a period of one year.
No costs.
SBS* Sd/- JUDGE