IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.8470 OF 2017 (GM-CPC) BETWEEN:
SRI V.THIMMEGOWDA, S/O VENKATARAYAPPA, AGED ABOUT 69 YEARS, R/A ARADESHNAHALLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT, PRESENTLY RESIDING AT NO.99, 2ND BLOCK, BDA LAYOUT BEHIND UNITY LIFE LINE HOSPITAL NAGARABHAVI 2ND STAGE, BANGALORE-560 072.
... PETITIONER (BY SRI. KUMAR.J.C., ADVOCATE) AND:
1 . THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU-560 001.
2 . THE DEPUTY COMMISSIONER, BENGALURU RURAL DISTRICT, 1ST FLOOR PODIM BLOCK, VISHWESHWARAIAH TOWER, DR. AMBEDKAR VEEDHI, BENGALURU-560 001.
3 . THE TAHASILDAR, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT, BENGALURU-562 110.
4 . SMT. PATALAMMA, W/O LATE VENKATARAMANAPPA, AGED ABOUT 82 YEARS, 5 . SRI. S.V.KRISHNAMURTHY, S/O LATE VENKATARAMANAPPA, AGED ABOUT 55 YEARS, NOS.4 & 5 ARE RESIDING AT ARADESHNAHALLI, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT-562 110.
6 . SRI. SHANTHABABU, S/O LATE THUKKAPPA, AGED ABOUT 49 YEARS, RESIDING AT NO.72, 4TH MAIN ROAD BHUVANESHWARINAGARA, R.T.NAGAR, BENGALURU-560 032.
... RESPONDENTS (BY SMT. H.R.ANITHA, HCGP FOR SRI. V.RAVI PRAKASH, ADVOCATE FOR R-5;
R-1 SERVED; SRI. L.M.PANDURANGA SWAMY, ADV FOR R-6) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 28.01.2017 VIDE ANNEXURE-A PASSED BY THE LEARNED ADLL. CIVIL TRIAL JUDGE & JMFC AT DEVANAHALLI ON THE APPLCIATION FILED BY THE PETITIONER UNDER ORDER 1, RULE 10 R/W 151 OF CPC IN O.S.NO.302/2007 PENDING ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, DEVANAHALLI, AS PER ANNEXURE-A AND GRANT PERMISSION TO THE PEITIONER FOR DELETION OF R-1 TO R5/DEFENDANT NO.1 TO 5 IN THE SUIT; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a declaration suit in O.S.No.302/2007 is invoking the writ jurisdiction of this Court for assailing the order dated 28.01.2017, a copy whereof is at Annexure-A, whereby, the learned Additional Civil Judge, Devanahalli, having rejected his application filed under Order I Rule 10 of CPC, 1908 has refused to permit him to delete defendant Nos.1 to 5 who happen to be respondent Nos.1 to 5 herein. After service of notice the respondents having entered appearance through their counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that the impugned order is unsustainable for more than one reason as enlisted below:
a) petitioner being the plaintiff is the dominus litis; he has almost an unconditional right to give up his claim as against all or any of the consenting defendants in a suit since he is not seeking leave to litigate afresh on the same cause of action; although this right arguably may be subject to all just exceptions but the case of the petitioner does not fit into them; and, b) the contention of the respondents that giving up the claim against the defendants concerned would prejudice their interest in the property is un-understandable into say the lest inasmuch as the petitioner-plaintiff does not want to proceed against them and he cannot be obligated to continue to wage the legal battle against those with whom he has entered truce vide DAMAYANTI RAI BAKSHI vs MANOJ KUMAR MEHTA, AIR 2004 DELHI 422.
In the above circumstances, the writ petition succeeds; impugned order is set at naught; petitioner’s subject application having been allowed, the defendant Nos.1 to 5 stand unloaded from the array of parties in the suit, once for all.
If deletion of these respondents gives rise to a cause of action in their favour, it is for them to pursue appropriate legal remedies.
All other contention of the parties are kept open. No costs.
Sd/- JUDGE DS