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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
SACHIN SHANKAR MAGADUM, J.
KARIYAPPA S/O SANNAPPA UPPUNASHI - PETITIONER
Vs.
HANUMANTHAPPA S/O SIDDAPPA UPPUNASHI - RESPONDENTS
C.R.P.No.100100/2016
Decided On : 08-06-2021
Code of Civil Procedure, 1908 – Order 23 Rule 1, Section 115 – Relief of declaration of title of suit property – Relief of injunction – Amendment to Plaint – Respondents/plaintiffs instituted suit in O.S. against present petitioner/defendant seeking relief of declaration of title of suit property bearing VPC and also sought for consequential relief of injunction – Respondents/plaintiffs filed an application in I.A.No.10 seeking amendment of plaint – Amendment was sought to bring in correction to property number in plaint as well as in suit schedule – After hearing both parties, Judge rejected I.A.No.10 by order dated 24.06.2016. Being aggrieved by order on A.No.10, respondents/plaintiffs filed application in I.A.No.11 under Order 23 Rule l(3)(a) of CPC requesting Court to permit respondents/plaintiffs to withdraw suit with liberty to file a fresh suit. – Judge by examining rival contentions of parties allowed application by holding that there is formal defect and said defect can be cured only by filing a fresh suit – Judge was also of view that burden would still lie on plaintiffs to establish their right and title – On these set of reasonings, Judge has allowed application filed in I.A.No. 11 permitting respondents/plaintiffs to withdraw suit with liberty to file a fresh suit.
Finding of the Court:
Court is of view that, at this stage, respondents/plaintiffs cannot be permitted to file a fresh suit which would cause immense irreparable loss and would also cause financial burden on petitioner/defendant in defending a fresh litigation – Fact that petitioner/defendant has to again undergo long ordeal of fighting a litigation cannot be compensated in terms of money or cost – Judgments cited by learned counsel for petitioner are squarely applicable to present case on hand – Judgment cited by counsel for respondent Nos.2 and 3 is not applicable as facts and circumstances of case in that case are totally different, In judgment cited by learned counsel for respondent Nos.2 and 3 that was a case where plaintiff found defect and therefore, application was filed. In present case on hand, defendant though notified defect in description way back in 2009, respondents/plaintiffs being aware of defect in description have consciously proceeded with trial on same set of pleadings and documents and trial is concluded – Entire exercise undertaken by respondents/plaintiffs lacks bonafide and therefore, Court is of view that order under challenge passed by Judge suffers from serious material irregularity and same is liable to be set aside by this Court. – Impugned order passed on I.A.No.11 filed under Order 23 Rule l(3)(a) of CPC in O.S. as per Annexure-F is set aside.
Result : Civil Revision Petition Allowed
ORDER :
The captioned civil revision petition is filed by the defendant questioning the order dated 23.09.2016 passed on I.A.No.11 filed under Order 23 Rule 1(3)(a) of CPC in O.S.No.122/2008 as per Annexure-F permitting the respondents/plaintiffs to withdraw the suit with liberty to file a fresh suit.
2. The facts leading to the case are as under:
The respondents/plaintiffs instituted suit in O.S.No.122/2008 against the present petitioner/defendant seeking relief of declaration of title of the suit property bearing VPC No.33 (present VPC No.29) and also sought for consequential relief of injunction.
3. On receipt of summons, the present petitioner/defendant tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint.
4. Based on the pleadings, the learned Judge formulated issues and both the parties lead in evidence to substantiate their claim. Both the parties addressed their arguments on the main matter and at that stage, the respondents/plaintiffs filed an application in I.A.No.10 seeking amendment of plaint. The amendment was sought to bring in correction to the property number in the plaint as well as in the suit schedule. After hearing both the parties, the learned Judge rejected I.A.No.10 by order dated 24.06.2016. Being aggrieved by the order on I.A.No.10, the respondents/plaintiffs filed application in I.A.No.11 under Order 23 Rule 1(3)(a) of CPC requesting the Court to permit the respondents/plaintiffs to withdraw the suit with liberty to file a fresh suit.
5. In support of their contention, the respondents/plaintiffs specifically contended in the affidavit that at the time of institution of the suit, the suit schedule property was wrongly described as VPC Nos.28 and 29. The respondents/plaintiffs claim that the correct description of the property is VPC Nos.30 and 33 and therefore, the respondents/plaintiffs sought for amendment of the plaint by filing I.A.No.10. Since the said application was rejected, the respondents/plaintiffs have come up with this application. The respondents/plaintiffs claim that there is a formal defect in the plaint and if petitioner/defendant proceed with the suit, the same would be detrimental to their interest and therefore, they sought leave of the Court to withdraw the suit with liberty to file a fresh suit.
6. The said application was strongly resisted by the petitioner/defendant by filing detailed objections.
7. The learned Judge by examining the rival contentions of the parties allowed the application by holding that there is formal defect and the said defect can be cured only by filing a fresh suit. The learned Judge was also of the view that the burden would still lie on the plaintiffs to establish their right and title. On these set of reasonings, the learned Judge has allowed the application filed in I.A.No.11 permitting the respondents/plaintiffs to withdraw the suit with liberty to file a fresh suit.
8. Assailing the correctness of the order under challenge, the petitioner/defendant is before this Court.
9. Learned counsel appearing for the petitioner would vehemently argue and contend before this Court that the present petitioner had filed written statement on 21.04.2009 and the petitioner/defendant had rightly pointed out the mistake in regard to mentioning the property number in the plaint as well as the boundary. This misdescription of the suit schedule property was brought to the notice of the respondents/plaintiffs way back in 2009. Learned counsel would further submit to this Court that, however, the plaintiffs proceeded with the suit, lead evidence and it is after 8 years when the matter is posted for arguments, the present application is filed seeking permission to withdraw the suit and to file a fresh suit. He would also submit to this Court that the present application in I.A.No.11 is filed to overcome the order dated 24.06.2016 passed on I.A.No.10. He would also submit to this Court that similar application which was filed in I.A
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