IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.41272 OF 2019 (GM-CPC) BETWEEN:
SRI.MANDI SHANKRANNA, S/O LATE MANDI THIPPESWAMY, AGED ABOUT 49 YEARS, RESIDING AT N.DEVARAHALLI, CHALLAKERE TALUK – 577 522, CHITRADURGA DISTRICT.
… PETITIONER (BY SRI. B.M.SIDDAPPA, ADVOCATE) AND:
1. SRI.BOBLARA BASAVARAJAPPA, S/O LATE BOBLARA THIPPESAAMY, AGED ABOUT 49 YEARS, RESIDING AT N.DEVARAHALLI, CHALLAKERE TALUK – 577 522, CHITRADURGA DISTRICT.
2. SMT.THIMMAKKA, W/O LATE GANGANNA, AGED ABOUT 71 YEARS, RESIDING AT N.DEVARAHALLI, CHALLAKERE TALUK – 577 522, CHITRADURGA DISTRICT.
3. SMT. THIPPAMMA, W/O LATE GANGANNA, AGED ABOUT 68 YEARS, RESIDING AT N.DEVARAHALLI, CHALLAKERE TALUK – 577 522, CHITRADURGA DISTRICT.
4. SMT. BASAMMA, W/O LATE GANGANNA, AGED ABOUT 66 YEARS, RESIDING AT N.DEVARAHALLI, CHALLAKERE TALUK – 577 522, CHITRADURGA DISTRICT.
… RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, CHALLAKERE IN O.S.NO.21/2018 ON I.A.NO.5 DATED 14.08.2019 PRODUCED AS ANNEXURE - K.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being first defendant in a partition suit in O.S.No.21/2018 is knocking at the doors of writ Court for assailing the order dated 14.08.2019, a copy whereof is at Annexure – K, whereby, the learned Senior Civil Judge, Challakere, having favoured the application in I.A.No.5 filed by the respondent-plaintiff under Order XXIII Rule 1 r/w Section 151 of CPC, 1908, has permitted withdrawal of the suit by imposing cost of Rs.3,000/- with leave to institute a fresh one, on the same cause of action.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to interfere in the matter for the following reasons:-
a) It has been a settled Principle of Law that ordinarily if arguably there are defects, the plaintiff is entitled to withdraw the suit proceedings which he has instituted before the Court subject to all just exceptions, into which, case of the petitioner does not fit.
b) The contention that the filing of a fresh suit as contemplated by the respondent – plaintiff would not serve any purpose and it is only calculated to harass the petitioner, is bit difficult to accept inasmuch as what prejudice has been caused to the petitioner by the impugned order is not demonstrated despite long arguments; it is more so when the Court below in its wisdom has levied a cost of Rs.3,000/- payable to the defendants and petitioner being one of them eventually will be a sharer therein.
c) Whether a suit should be permitted to be withdrawn or not, and whether the leave to withdraw it should be accorded to institute fresh one are the matters of judicial discretion and thus, the impugned order is a product of exercise of such discretion, which ordinarily does not merit a deeper examination at the hands of writ Court as held in the case of Sadhana Lodh vs. National Insurance Company, 2003 (3) SCC 524.
In the above circumstances, petition being devoid of merits stands rejected, in limine.
Sd/- JUDGE MH/-