ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

This writ petition is filed by the petitioner, challenging the order dated 19.03.2022 passed on I.A.No.17 and dismissal of the suit in O.S.No.150/2017 by the learned Principal Senior Civil Judge and CJM, Haveri.

2. Brief facts leading rise to the filing of this writ petition are as follows:

3. Respondent No.1/plaintiff filed a suit in O.S.No.150/2017 for the relief of partition and separate possession. The father of the petitioner filed a written statement denying the averments made in the plaint, and contended that the suit schedule properties are the self- acquired properties of the father of the petitioner and other respondents. Respondent Nos.7 to 16 filed an application under Order 1 Rule 10(2a) of CPC to include defendant Nos.7 to 17, as they are necessary parties and also filed an application under Order 8 Rule 1A of CPC to produce the documents before the court. The suit in O.S.No.90/2015 was transferred to the court of Senior Civil Judge, Savanur and it was renumbered as O.S.No.150/2017. The trial court allowed the application and permitted respondent Nos.7 to 17 to come on record. Respondent No.1 filed an affidavit in the form of examination-in-chief. The petitioner’s father also filed an affidavit in the form of examination-in-chief. After completion of the examination-in-chief, other respondents filed their examination-in-chief, and cross-examination was completed. Respondent No.1 filed a memo for dismissal of the suit as she is not interested in continuing the case. The petitioner filed an objections to the said memo. The trial court allowed the memo and dismissed the suit as not pressed. Hence, the petitioner filed this writ petition challenging the order passed on I.A.No.17, and also the dismissal of the suit as not pressed.

4. Heard the learned counsel for the petitioner and learned counsel for respondent No.2.

5. Learned counsel for the petitioner submits that the trial court committed an error in dismissing the suit as not pressed. He submits that the petitioner filed the objections to the said memo. The trial court without considering the contention raised by the petitioner has passed the impugned order. Hence, he prays to allow the writ petition.

6. Per contra, learned counsel for respondent No.2 submits that the writ petition filed by the petitioner is not maintainable, as the suit was dismissed as not pressed.

Hence, he prays to dismiss the writ petition.

7. Perused the records and considered the submissions of the learned counsel for the parties.

8. Admittedly, respondent No.1 filed a suit against the petitioner and the other respondents for the relief of partition and separate possession. The petitioner filed an application in I.A.No.17 for transposition. Before filing of the said application by the petitioner, respondent No.1 had filed a memo for dismissal of the suit as not pressed.

Admittedly, the suit is not pending. Hence, the writ petition filed by the petitioner is not maintainable. As pointed out by the learned counsel for respondent No.2, the suit is not pending as of the date of filing the writ petition. If the petitioner, aggrieved by the dismissal of the suit as not pressed, has an efficacious remedy by filing an appeal under Section 96 of CPC. There is no impediment for the petitioner to file a separate suit for the relief of partition and separate possession. Based on the above discussion, I proceed to pass the following;

ORDER i) The writ petition is dismissed.

ii) Liberty is reserved to the petitioner to challenge the dismissal of the suit before the appropriate forum or in the alternative, file a suit for partition and separate possession.