IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF AUGUST, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.80/2018 BETWEEN:
SRI. A RAVISHANKAR AGED ABOUT 54 YEARS, S/O LATE K ANANTHARAMAIAH, ADVOCATE, NO.404, RANKA PARK APARTMENT, NEAR RICHMOND CIRCLE, LALBAGH ROAD, BANGALORE-27.
... PETITIONER (BY SRI. SANJAY GOWDA N S, ADV.) AND:
1. SMT. VIJAYALAKSHMI AGED ABOUT 68 YEARS, W/O NANJEGOWDA, R/O 1ST CROSS, 1ST MAIN, HEMAVATHI NAGAR, HASSAN-573201.
2. SMT. KAMALADEVI AGED ABOUT 63 YEARS, W/O LAKSHMEGOWDA, D.NO.2118, GOPALASWAMY VATARA, 3RD CROSS, COLLEGE ROAD, HASSAN-573201.
SINCE DEAD BY LRs:
2(a). SRI LAKSHMEGOWDA AGED 76 YEARS, HUSBAND OF SMT.KAMALADEVI, 2(b). SMT. KAVITHA AGED 44 YEARS, W/O YOGESH, D/O SMT. KAMALADEVI, 2(c). SRI PRASANNA AGED 42 YEARS, S/O SMT. KAMALADEVI, 2(d). SMT. JAYASHREE AGED 40 YEARS, W/O SRI CHANDRASHEKAR, D/O SMT. KAMALADEVI, 2(e). SRI KIRAN AGED 38 YEARS, S/O SRI LAKSHMEGOWDA, S/O SMT. KAMALADEVI, RESPONDENTS 2(a) TO 2(e) ARE R/AT NO.2118, GOPALASWAMY VATARA, 3RD CROSS, COLLEGE ROAD, HASSAN-573201.
3. SMT. LALITHAMANI AGED ABOUT 57 YEARS, W/O H S PRAKASH, R/O 3RD CROSS, HEMAVATHI NAGAR, HASSAN-573201.
4. SMT. DEVAMMA AGED ABOUT 94 YEARS, W/O LATE R BETTEGOWDA, 5. SRI. B NARAYANASWAMY AGED ABOUT 71 YEARS, S/O LATE R BETTEGOWDA, 6. SRI. B SRINIVASMURTHY AGED ABOUT 66 YEARS, S/O LATE R BETTEGOWDA, 7. SRI. B KUMARDAS AGED ABOUT 52 YEARS, S/O LATE R BETTEGOWDA, RESPONDENTS 4 TO 7 ARE R/O 1ST CROSS, 1ST MAIN, HEMAVATHI NAGAR, HASSAN-573201.
8. SMT. YASHODA @ AKKAYYA AGED ABOUT 78 YEARS, W/O LATE M R LAKSHMEGOWDA, R/O HOUSE NO.1539, SARASWATHI PURAM, SALAGAME ROAD, HASSAN-573201.
9. SMT. SEETHALAKSHMI AGED ABOUT 59 YEARS, W/O RAMEGOWDA, R/O 1ST CROSS, 1ST MAIN, HEMAVATHI NAGAR, HASSAN-573 201.
10. SRI.PRUTHVI AGED ABOUT 28 YEARS, S/O APPAJIGOWDA, R/O HOUSE NO.1539, SARASWATHI PURAM, SALAGAME ROAD, HASSAN-573201.
11. SMT. RENUKA AGED ABOUT 55 YEARS, W/O NAGARAJ, ALEMANE PATHRIKE, NEAR RAJARAJESHWARI KALYANA MANTAP, 2ND BLOCK, RAJAJINAGAR, BANGALORE-560010.
12. SMT. CHANDRIKA AGED ABOUT 53 YEARS, W/O VENUGOPAL, AUTOMOBILE WORK SHOP BUSINESS, MAHALAKSHMI LAYOUT ENTRANCE, 2ND BLOCK, RAJAJINAGAR, BANGALORE-560010.
13. SRI. JAGADEESH AGED ABOUT 48 YEARS, S/O LATE M R LAKSHMEGOWDA, R/O HOUSE NO.1539, SARASWATHI PURAM, SALAGAME ROAD, HASSAN-573 201.
14. SRI. SATHISHA @ SATHYA AGED ABOUT 43 YEARS, S/O LATE M R LAKSHMEGOWDA, R/O HOUSE NO.1539.
SARASWATHI PURAM, SALAGAME ROAD, HASSAN-573201.
15. SRI. BASAVARAJAPPA AGED ABOUT 46 YEARS, S/O LATE NANJAPPA, 1ST MAIN, HEMAVATHI NAGAR, HASSAN-573201.
16. THE AUTHORIZED ATTORNEY VAIDHIKA BHAVAN, REP. BY ITS MANAGER/SECRETARY, GOWRIKOPPALU ROAD, VIDYA NAGAR, HASSAN-573201.
17. SRI.KRISHNAMURTHY MAJOR, S/O NANJUNDASHETTY, "SUKRUKA" 1ST MAIN, HEMAVATHI NAGAR, HASSAN-573201.
18. SMT. G RADHA MAJOR, W/O LATE SHESHAPPA, R/O NEAR VENKATESHWARA NURSING HOME, 2ND CROSS, 9TH WARD, RAVINDRA NAGAR, HASSAN-573201.
... RESPONDENTS (BY SMT. KAVITHA H C, ADV. FOR R1 & R2 & R2(a-e) R4 TO R18 –NOTICE D/W V/O DT:21.02.2018 THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 22.01.2018 PASSED IN O.S.NO.46/2015 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, HASSAN, HOLDING THAT RESPONDENT NO.1 TO 3 PERMITTED TO WITHDRAW THE SUIT WITH A LIBERTY TO FILE A FRESH SUIT ON SAME CAUSE OF ACTION BEFORE THE JURISDICTIONAL COURT IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner is before this Court under Section 115 of the Code of Civil Procedure assailing the order dated 22.01.2018 passed on I.A.No.21 filed under Order 23 Rule 1 of CPC in O.S.No.46/2015 on the file of the Principal Civil Judge and JMFC, Hassan.
2. Petitioner is defendant No.16 and respondents 1 to 3 are the plaintiffs and other respondents are co- defendants in O.S.No.46/2015, filed for declaration to declare that the suit properties are joint family properties of the plaintiffs and defendants 1 to 4 and further to declare that the sale deeds executed by the deceased M.R.Lakshmegowda in favour of defendants No.12 to 16 and other sale deeds in respect of the suit properties are null and void and not binding on them.
3. After filing of the written statement by the defendants, the plaintiffs filed I.A.No.21 under Order 23 Rule 1 of CPC, praying to withdraw the suit, with liberty to file a fresh suit before the jurisdictional Court to avoid multiplicity of proceedings. In the affidavit accompanying the application, the plaintiffs stated that the total area of the suit schedule property is about 0.16 guntas in Sy.No.15/18 of Thammalapura village, Kasaba Hobli, Hassan Taluk. But the description of properties of each item has not been shown in the schedule by oversight to identify the properties and also relevant dates of alleged sale transactions. The objections were filed to the said application contending that the schedule property is in litigation since the year 1973 and the suit prayer is hit by limitation. Hence, permitting the plaintiffs to withdraw the suit would take away the qualified and accrued right of the defendants.
4. The trial Court, under the impugned order allowed the application and permitted the plaintiffs to withdraw the suit, with liberty to file fresh suit on the same cause of action. Aggrieved by the said order, defendant No.16 is before this Court, in this revision petition.
5. Heard the learned counsel for the petitioner/ defendant No.16 and learned counsel for respondents No.1 to 3.
6. Learned counsel for the petitioner would submits that the plaintiffs have not made out any ground to permit them to withdraw the suit as contemplated under Order 23 Rule 1(3) of CPC. The only ground stated in the affidavit accompanying the application is that description of properties of each item has not been shown in the schedule by oversight to identify the properties and also relevant dates of alleged sale transactions. Learned counsel for the petitioner invites attention of the court to the prayer and schedule in the plaint and submits that the schedule contains description of the properties as well as the relevant dates of sale deeds as also boundaries. Hence, he submits that the trial Court could not have permitted the plaintiffs to withdraw the suit.
7. Per contra, learned counsel for respondents No.1 to 3 i.e. plaintiffs, submits that the trial Court proceeded to allow the application permitting the plaintiffs to withdraw the suit on the ground that the plaintiffs themselves are the master of the suit and they are at liberty to withdraw the suit at any stage of the proceedings.
8. On hearing the learned counsel for the parties and on perusal of the petition papers, the question which arises for consideration is whether the trial Court is justified in permitting the plaintiffs to withdraw the suit, with liberty to file a fresh suit on the same cause of action in the facts and circumstances of the case?
9. The suit filed by the plaintiffs is for declaration to declare that the suit properties are joint family properties of plaintiffs and defendants 1 to 4 and further to declare that the sale deeds executed by deceased M.R.Lakshmegowda in favour of defendants No.12 to 16 and other sale deeds in respect of the suit properties are null and void and not binding on them. Schedule to the plaintiff reads as follows:
“SCHEDULE Sy.No.15/18, measuring 16 guntas, situated at Thammalapura Village, Kasaba Hobli, Hassan Taluk, (The properties purchased by defendants 12 to 16 are all included in the said total extent and certain properties have been given AR and Khata number, by CMC, Hassan, as (1) 2118, new Khata No.2294, measuring 65 ft. X 30 ft. (2) 2118, new Khata No.2295, measuring 75 ft. X 75 ft., (3) Old Khata No.2120, new Khata No.2296, measuring (a) 30 ft., X 60 ft., and (b) 24 ½ ft., X 60 ft., totally measuring 54½ ft., X 60 ft., (4) Old Khata No.2121, new Khata No.2297, measuring 60 ft., X 40 ft., registered sale deed, dated 16.06.1980, vide document No.1001/80-81, sale deed, dated 31.01.1992, registered as document No.3418, registered sale deed, dated 31.07.1984, registered as document No.906, registered sale deed, dated 16.06.1980, registered as document No.1003/80-81, registered sale deed, dated 05.02.1979, registered as document No.3704/ 78-79, registered sale deed, dated 29.03.1988, registered as document No.33/88-89 and registered sale deed, dated 30.06.1980, registered as document No.1127/80-81 and subsequent sale deeds), and commonly bounded by East : Municipal Road and Christian Cemetery West : Road North : Sy.No.16 South : Hassan border and property of deceased K.T. Prakash”
Schedule to the suit indicates the katha number, its measurement and dates of sale deeds and also document numbers of each sale deed. Schedule also indicates the boundaries to the schedule properties. Thus, when the schedule to the plaint is perused, the contention of the plaintiffs that they have not properly furnished the description of the properties of each items cannot be acceptable. The schedule also indicates that the relevant dates of alleged sale transactions. Thus, the reason stated for withdrawing the suit with liberty to file fresh suit appears to be not available to the plaintiffs.
10. Order 23 Rule 1(3) of CPC reads as follows:
“1(3). Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.”
From the reading of the above provision, it is clear that the Court can permit the withdrawal of suit if the plaintiffs points out formal defect by which the suit fails; or that there are sufficient grounds made out to file fresh suit on the subject matter of the suit or part of it. No such formal defect or sufficient ground is made out by the plaintiffs to permit them to withdraw the present suit and institute a fresh suit on the same cause of action. The only ground stated in the affidavit would not be available for the plaintiffs on perusal of the description of the property stated in the schedule to the plaint. The Trail Court proceeded on the basis that the plaintiffs are the masters of their case and they are at liberty to withdraw their case at any stage of the proceedings. It is true that the plaintiffs are the masters of the suit and they are at liberty to withdraw the suit, but without liberty to file fresh suit on the same case of action. When a plaintiff intends to withdraw the suit with liberty to file fresh suit, the plaintiff has to fulfill the condition precedent stipulated under Order 23 Rule 1(3) of CPC. The rule requires that the Court has to satisfy itself before permitting withdrawal of suit with liberty to institute fresh suit as to whether the plaintiffs have fulfilled conditions enumerated therein. It is the duty of the Court to satisfy itself that there exists proper ground or reasons for permitting withdrawal of suit with liberty to file fresh suit. The reason assigned by the Trial Judge that the plaintiffs are the masters of suit and they are at liberty to withdraw suit to file fresh suit was not sufficient to allow the application filed under Order 23 Rule 1(3) of CPC. Thus, the trial Court committed material irregularity in allowing the application under the impugned order.
11. Hence, the impugned order dated 22.01.2018 is set aside and the trial Court is directed to proceed with the suit. Accordingly, the revision petition is allowed. Liberty is reserved to the plaintiffs to withdraw the suit in accordance with law.
In view of disposal of the revision petition, I.A.No.2/2019 for vacating stay does not survive for consideration. Hence, the said application is rejected.
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