Back
2024 Supreme(Online)(KAR) 11024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MRS JUSTICE M.G.UMA WRIT PETITION NO.100392/2024(GM-CPC)
BETWEEN:
VINOD S/O. KANTHENDRAGOUDA PATIL, AGE: 51 YEARS, OCC: AGRICULTURE/BUSINESS, R/O: CHETANA COLONY, VIDYANAGAR, HUBBALLI – 582 021.
…PETITIONER (BY SRI S.S.BETURAMTH, ADVOCATE FOR SRI K. L. PATIL, ADVOCATE)
AND:
1. SMT. GIRIJA W/O. LATE BASAVARAJ TORGALMATH, AGE: 64 YEARS, OCC: HOUSE WIFE, R/O: RANKA STELLO APARTMENT, BARAKOTRI, B-BLOCK, 63, DHARWAD – 580 008.
Digitally signed by MANJANNA E 2. SMT. VIJAYALAKSHMI W/O. C. KOTUR, Location: Hig h AGE: 63 YEARS, OCC: HOUSEWIFE, Court of Karnataka R/O: BISHOP AUCKLAND COUNTY, DURHAM, ENGLAND.
3. MANOJ S/O. SIDDALINGAYYA HIREMATH AGE: 60 YEARS, OCC: SELF-EMPLOYED, R/O: 80, F-2, GREENS APARTMENT, 5TH MAIN, 2ND CROSS, NEAR RANGABHARANA KALAKENDRA, GEDALAHALLI, SANJAY NAGAR, BENGALURU NORTH, BENGALURU, RMV EXTENSIONS, 9TH STAGE, KARNATAKA – 560 094.
4. SMT. NEETA W/O. BASAVARAJ ULLAGADDIMATH, AGE: 56 YEARS, OCC: HOUSEWIFE, R/O: 09, RAJ NAGAR, HUBBALLI SOUTH – 580 032.
5. SMT. JAYALAKSHMI W/O. LATE MRUTHUNJAYA HIREMATH, AGE: 61 YEARS, OCC: HOUSEWIFE, R/O: 120/5, 33RD CROSS, BESANT NAGAR, ADYAR, CHENNAI, TAMILNADU – 600 020.
6. RASHMI D/O. LATE MRUTHUNJAYA HIREMATH, AGE: 37 YEARS, OCC: DESIGN CONSULTANT, R/O: 120/5, 33RD CROSS, BESANT NAGAR, ADYAR, CHENNAI, TAMILNADU – 600 020.
7. SNEHA D/O. LATE MRUTHUNJAYA HIREMATH, AGE: 34 YEARS, OCC: HOUSEWIFE, R/O: 120/5, 33RD CROSS, BESANT NAGAR, ADYAR, CHENNAI, TAMILNADU – 600 020.
…RESPONDENTS (R1 IS SERVED;
R2 TO R7 ARE NOTICE TO DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ORDER OR DIRECTION TO QUASH THE IMPUGNED ORDER DATED 29-11-2023 ON IA NO. 5 FILED UNDER ORDER 23 RULE 1(3) R/W SEC. 151 CPC IN O S NO. 429/2020 ON THE FILE OF 2ND ADDL. CIVIL JUDGE AND 2ND JMFC DHARWAD VIDE ANNEXURE-G AND CONSEQUENTLY DISMISS IA NO. 5 AND ETC., THIS PETITION, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is seeking to quash the order dated
29.11.2023 passed on IA No.5 filed under Order 23 Rule 1 (3) r/w Section 151 of CPC in OS.No.429/2020 on the file of the learned II Additional Civil Judge and JMFC-II, Dharwad produced as per Annexure-G by dismissing the application. 2. Heard Sri. S.S.Beturamth, learned counsel for Sri K.
L. Patil, learned counsel for the petitioner. Respondent No.1 served un-represented. Vide order dated 20.01.2024, service of notice in respect of respondent Nos.2 to 7 is dispensed with.
Perused the materials on record.
3. Learned counsel for the petitioner contended that the petitioner is respondent No.7 in the suit OS.No.429/2020 filed by respondent No.1 seeking specific performance of the contract. The suit was filed on 23.11.2020. The petitioner had purchased the property even before filing of the suit i.e., on 29.10.2020. When the matter was pending for consideration, respondent No.1 filed IA No.5 under Order 23 Rule 1(3) of CPC seeking permission to withdraw the suit with liberty to file the same before the appropriate Court. It is stated that the trial Court was not having pecuniary jurisdiction and there was non-
joinder of necessary parties and therefore, permission was sought for withdrawing the suit. The trial Court allowed the said application by passing the impugned order without considering the contentions taken by the petitioner. Therefore, the petitioner is before this Court.
4. Respondent No.1/plaintiff filed OS.No.429/2020 seeking specific performance of contract i.e., agreement to sell executed by father of defendant No.1 to 6. It is the contention of the petitioner, who is arrayed as defendant No.7 that he purchased the property on 29.10.2020. It is stated that after purchase of the property by defendant No.7, the suit in question was came to be filed on 23.11.2020. During the pendency of the suit i.e., on 28.08.2023, IA No.5 was came to be filed by the plaintiff under Order 23 Rule 1(3) R/w Section 151 of CPC seeking permission to withdraw the suit with liberty to file fresh suit on the same cause of action. In the affidavit accompanying the application, it is stated that plaintiff has came across some formal defects in the suit regarding pecuniary jurisdiction of the Court as well as non-inclusion of necessary parties to the suit. Even though, it is stated that the suit is bad for non-inclusion of necessary parties, there is no explanation regarding the same. If the trial Court lacks pecuniary jurisdiction, the plaintiff can get the plaint returned for presentation before proper Court, by making proper valuation.
5. It is stated that respondent No.1 had also filed the suit for declaration as sale deed executed in favour of defendant No.7 is not binding on him, the market value of suit property would exceed the pecuniary jurisdiction of the trial Court. If that is the situation, the plaint could have been returned to the plaintiff for presentation before the proper Court by invoking Order 7 Rule 10 of CPC.
6. The plaintiff has invoked the Order 23 Rule 1(3) of CPC, which refers to some formal defects, due to which, the suit must fail or for any other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit. Even though, the plaintiff contends that there are formal defects, it has not explained or elaborated on the same. Mere saying that there is formal defects can not be a ground to entertain the application. The Court must be satisfied that there is formal defects as a result of which the suit must fail or in other words the defect which will go to the root of the matter and which cannot be rectified, can be considered under this provision.
7. Under such circumstances, the trial Court could not have mechanically proceeded to allow the application for withdrawing the suit with liberty to file a fresh suit. Hence, I am of the opinion that if the plaintiff is of the opinion that the suit is not properly valued or the trial Co
