IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19th DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.12128 of 2019 (GM-CPC) BETWEEN:
Sri. H.M. Shivannagouda S/o late Maasthigouda, Aged about 75 years, R/at Honnamaranahalli, Nuggehalli Hobli, Channarayapatna Taluk – 573 116. ... Petitioner (By Smt. Sree Vidya G.K., Advocate) AND:
1. Smt. Ningamma W/o Masthigowda, Aged about 85 years, 2. Smt. Kamalamma W/o Manjegowda, Aged about 18 years, 3. Smt. Dakshayini D/o Manjegowda, Aged about 72 years, 4. Sri. Vinaykumar S/o Manjegowda, Aged about 15 years, Minor, Guardina Mother 5. Smt. Thayamma W/o Nanjegowda, Respondents 1 to 5 are R/at Honnamaranahalli Village, Nuggehalli Hobli, Channarayapatna Taluk, Hassan District – 573 116.
6. Smt. Boramma W/o Boregowda, Aged about 55 years, 7. Smt. Lakshmamma W/o B. Boregowda, Aged about 60 years, Respondents 6 and 7 are R/at Nerlakere Village, Nuggehalli Hobli, Channarayapatna Taluk, Hassan District – 5.
8. Sri. Range Gowda S/o Rangergowda, Aged about 75 years, 9. Sri. Nanjegowda S/o Rangegowda, Aged about 43 years, 10. Smt. Bhagyamma W/o Rangegowda, Aged about 45 years, 11. Smt. Rohini W/o Rajegowda, Aged about 45 years, 12. Sri. Puttaswamy Gowda S/o late Ninegowda, Aged about 62 years, 13. Sri. Manjegowda S/o Puttaswamy Gowda, Aged about 30 years, 14. Sri. Kumar S/o Puttaswamy Gowda, Aged about 28 years, Respondents 8 to 14 are R/at Honnamaranahalli Village, Nuggehalli Hobli, Channarayapatna Taluk, Hassan District – 573 116.
15. Sri. Gangadharagowda S/o Alemane Ningegowda, Aged about 50 years, 16. Sri. Chandregowda S/o Nanjegowda, Aged about 53 years, 17. Sri. Manjegowda S/o Matigna Masthigowda, Aged about 50 years, Respondents 15 to 17 are R/at Honnamaranahalli Village, Nuggehalli Hobli, Channarayapatna Taluk, Hassan District – 573 116. … Respondents (By Sri. T.N. Vishwanatha, Advocate) This writ petition is filed under Article 227 of the Constitution of India praying to issue a writ of certiorari or any other appropriate writ by questioning the impugned order dated 05.03.2019 passed on I.A. filed under Order 23 Rule 1 in O.S. No.329/2009 on the file of the Principal Civil Judge (Jr. Dn.) and JMFC, Channarayapatna vide Annexure-G.
This writ petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The petitioner/plaintiff filed the present writ petition against the order dated 05.03.2019 rejecting the I.A filed under Order 23 Rule 1(1) read with Section 151 of Code of Civil Procedure seeking permission to withdraw the suit with liberty to file a fresh suit made in O.S. No.329/2009 on the file of the Principal Civil Judge and JMFC, Channarayapatna.
2. The plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties of plaintiff and defendants and there was no partition. The defendants filed the written statement and denied the plaint averments. When the matter was posted for arguments on merits, at that stage, the application came to be filed by the plaintiff under order 23 Rule 1(1) read with Section 151 of Code of Civil Procedure seeking permission to withdraw the suit with liberty to file a fresh suit, contending that the sale transactions took place between father, brother and sisters. Therefore, he is required to implead some persons as parties to the suit and he is also required to furnish details about the sale transaction. Therefore, there is technical defect in the suit in respect of some of the properties. The said application was resisted by defendant No.5 contending that the application filed by the plaintiff is not maintainable. If at all the plaintiff wants to implead some more persons and include some more properties to the suit, he can do so the same in the same suit and such efforts have not been made. The trial Court after considering application and objections, by the impugned order dated 05.03.2019 rejected the application. Hence, the present writ petition is filed.
3. Smt. Sree Vidya, learned counsel appearing for the petitioner contended that the impugned order passed by the trial Court rejecting the application filed under Order 23 Rule 1(1) of Code of Civil Procedure is erroneous and contrary to material on record. She further contended that when the plaintiff filed the application to withdraw the suit with liberty to file a fresh suit on the ground that a suit may fail for some formal defect, for not impleading the necessary parties to the suit and not including some of the properties, the trial Court ought to have allowed the application. Therefore, she sought to allow the writ petition.
4. Having heard the learned counsel appearing for the petitioner, it is not in dispute that the suit was filed in the year 2009 by the plaintiff for partition and separate possession and after completion of evidence on both sides, when the mater was posted for arguments, at that stage, the present application came to be filed by the plaintiff to withdraw the suit. Reasons for withdrawal of the suit shown in the application accompanying the affidavit is that some of the parties have not been impleaded, some transactions have not been disclosed and some more properties have not been included to the suit. Considering the entire material on record, the trial Court has recorded a finding that the provisions of Order 23 of Code of Civil Procedure provides that, permission to withdraw the suit can be granted only when the Court satisfy itself that a suit must fail by reason of some formal defect and there are sufficient grounds to allow the application.
5. Admittedly in the present case, except the reason that some of the parties have not been included to the suit is not a ground to withdraw the suit. Petitioner has not made out any such formal defects and reasons assigned by the plaintiff are curable in nature and he is at liberty to cure the defects i.e., he can get implead the parties to the suit and can give explanation about the sale transactions. The plaintiff has filed suit against the defendants and dragged the matter for almost nine years, when the case is at the fag end i.e., at the stage of arguments, the present application was filed. Accordingly, application rightly dismissed with cost of Rs.1,000/-.
6. The impugned order passed by the trial Court in rejecting the application filed under Order 23 Rule 1(1) read with Section 151 of Code of Civil Procedure is in accordance with law. The Petitioner has not made out any ground to interfere with the impugned order in exercise the power under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/- JUDGE MBM