IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.26890/2017 (GM-CPC) BETWEEN:
MR.RANGANATHAPPA SON OF LATE ERANNA AGED ABOUT 66 YEARS, RESIDING AT: ADALUR VILLAGE, KASABA HOBLI, SIRA TALUK.
(BY SRI:RAJASHEKAR, ADVOCATE) AND MR. DODDANARRASAPPA SON OF MR.NARASIMHAIAH AGED ABOUT 47 YEARS, RESIDING AT: ADALUR VILLAGE, KASABA HOBLI, SIRA TALUK-572113.
...PETITIONER …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF HON’BLE CIVIL JUDGE AND JMFC AT SIRA DATED 17.042017 PASSED ON I.A.3 IN O.S. 45/2013 AT ANNEXURE-A AND ETC., THIS WRIT PETITION IS COMING ON FOR PRL. HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The plaintiff has filed the writ petition against the order dated 17.04.2017, dismissing I.A.3 filed under Order XXIII Rule 1 r/w Section 151 of Code of Civil Procedure made in O.S. No.45/2013 by the Prl.Civil Judge and JMFC., At Sira.
2. The plaintiff has filed the suit for declaration and permanent injunction in respect of the suit schedule property contending that he is the owner and in possession of the suit schedule property. Defendant – respondent herein entered appearance and filed the written statement denying the averments made by the petitioner in the said suit. When the matter was posted for cross-examination of PW.1, at that stage, the plaintiff filed the present application under Order XXIII Rule 1 r/w Section 151 of Code of Civil Procedure seeking permission to withdraw the suit with a liberty to file a fresh suit on the same cause of action contending that the suit of the plaintiff is suffering from some defects, the said defects continuous and same cannot be cured by way of an amendment, if the same continued, it will definitely effect the case on merits. Therefore, he wants to withdraw the suit with liberty to file a fresh suit. The said application was resisted by the respondent-defendant by filing the objections contending that the application filed is highly belated and the plaintiff is a chronic litigant and the suit is filed with an intention to harass the defendant and the plaintiff will have the habit of abuse the process of law. Therefore, sought for dismissal of the application.
3. The trial Court considering the application and objection, by the impugned order dated 17.04.2017, dismissed the application filed under Order XXIII rule 1 r/w Section 151 of Code of Civil Procedure. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the petitioner.
5. Sri.Rajashekar M., learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the application filed under Order XXIII rule 1 r/w Section 151 of Code of Civil Procedure is erroneous and contrary to the material on record. He would further contended that he has filed the application to withdraw the suit with liberty to file fresh suit on same cause of action and specifically stated that the suit of the plaintiff is suffering from some defects, the said defects continuous and same cannot be cured by way of an amendment, if the same continued, it will definitely effect the case on merits. The same has not been considered by the trial Court and erroneously dismissed the application. Therefore, he sought to quash the impugned order by allowing the writ petition.
6. Having heard the learned counsel for the petitioner, it is not in dispute that the present petitioner-plaintiff filed the suit for declaration and permanent injunction in respect of the suit schedule property morefully described in the schedule contending that he is the owner of the said property and defendant has no right, title and interest over the said property. The defendant has filed the written statement and denied the entire plaint averments and contended that the suit field by the plaintiff is not maintainable and there is no cause of action for the suit and alleged cause of action is false and imaginary. The defendant is the owner and in actual physical lawful possession and enjoyment of the suit property which is his ancestral property. Therefore, sought for dismissal of the suit.
7. It is also not in dispute that when the matter was posted for cross-examination of PW.1, the present application came to be filed. Though the plaintiff has filed the application under Order XXIII rule 1 r/w Section 151 of Code of Civil Procedure to withdraw the suit with liberty to file fresh suit on the same cause of action stating that there are some defects which cannot be cured by way of amendment. The Order XXIII rule 1 r/w Section 151 of Code of Civil Procedure, permits the plaintiff to withdraw the suit with liberty to file fresh suit on the same cause of action only if the defect is pointed out by the plaintiff and the Court must satisfy to allow the said application. Admittedly, in the present case, the plaintiff has not shown what is the defect and how the suit will fail. In the absence of any grounds made out as contemplated under Order XXIII rule 1 r/w Section 151 of Code of Civil Procedure, application is not maintainable.
8. The trial Court considering the application and objections, recorded a specific finding that on perusal of the order sheet which reveals that the plaintiff has amended the plaint on 16.10.2015. Now the plaintiff is seeking withdrawal of suit with a liberty to file fresh suit. The plaintiff has not assigned any reasons so as to allow the application. The plaintiff has not pleaded any defects which are crept in the plaint. Further, after lapse of more than 3 years, the present application is filed. There are no justifiable grounds urged by the plaintiff to allow application. The application filed by the plaintiff shows that he is like to harass the defendant for no cause. If there are any defects in the plaint, that can be cured by filing necessary application and the plaintiff is at liberty to file necessary application and cure the defects. Accordingly, trial Court rejected I.A.3 filed XXIII rule 1 r/w Section 151 of Code of Civil Procedure. The same is in accordance with law. Petitioner has not made out any grounds to interfere in exercise of power of this Court under Article 227 of the Constitution. Accordingly, petition is dismissed.
Sd/-
JUDGE BS