The petitioner who is the plaintiff in O.S.No.27/2014

filed before the Senior Civil Judge, Aland, is before

this Court seeking for the following reliefs:

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"a) Issue a writ of certiorari and to quash the order dated

25.03.2023 passed by the court of Senior Civil Judge at

Aland, Kalaburagi district in OS NO.27/2014 on IA NO. 8,

produced at Annexure - J.

b) Issue any other suitable writ, order or direction as this

honourable

court

deems

fit

under

the

facts

and

circumstances of the case including an order of cost."

Initially a suit was filed against defendant Nos.1 to 5

seeking for declaration of gift deed as null and void

and not binding on the plaintiff and for cancellation

of the said gift deed as also declaration of ownership,

possession

of

the

plaintiff

and

consequently

injunction.

In the said suit, defendant No.6 impleaded himself

and filed his written statement raising various

contentions. At that stage, initially, an application

under Order XXIII Rule 1 Sub Rule 3A and B of CPC

came to be filed seeking permission to withdraw the

suit with liberty to file a fresh suit which came to be

dismissed by the trial Court on 07.04.20221 on the

ground that no grounds are made out for exercise of

- 4 -

discretion, challenging the same the petitioner had

come up before this Court in W.P.No.201577/2021.

This Court vide order dated 06.12.2021 dismissed

the above petition on the submission made by the

counsel for the petitioner that a fresh application

would be filed disclosing the grounds complying with

Order XXIII Rule 1 of CPC subsequently application

came to be filed wherein the following defects were

pointed out:

"That there are following formal defects in the

suit which suit will fail:.

(i)

That in the suit the suit property is described

as Land Sy.No.404 measuring 01 Acres towards

northern portion out of 09 Acres 29 Guntas having its

boundaries as shown on para (2) of the plaint.

But the suit property is a NA Land along with its

structures (building) having TMC No.6-5-24 (new) 5-

1-47 (old), with the land of 01 Acre. So there is a

formal defect in the description of suit because of

which the suit is to fail.

(ii)

That there is defect in joinder of party as the

real party to answer the claim of plaint/case, is not

the Defendant No.1 to 5 against whom the suit is

originally framed and filed whereas the subsequently

got impleaded Defendant No.6 who claimed absolute

ownership,

possession

right

in

respect

of

suit

property.

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So this require entire alteration/change of

pleađings as to claim of Plaintiff as against the newly

added Defendant No.6 against whom, no single

averment/claim is made in the plaint since plaint case

were made as against D-1 to 5 only. This absence of

entire plaint case/pleading, right from beginning to

end of the prayer clause would be a formal defect

which entail failure of suit as in the absence of

pleading and prayer, no relief could be granted. Case

not pleaded against Defendant No.6 amount to formal

defect.

(iii)

That in view of Defendant No.1 to 5 though

appeared by same advocate did not file W.S. whereas

Defendant No.6 on his application impleaded and filed

his W.S and issues were framed by Court on 07-06-

2019 based on defence and denial of Plaintiff's case

interalia as to non-joinder and mis-joinder of parties,

this is also a formal defect, because of which suit is to

fail.

(iv)

That

the

Defendant

No.6

in

its

written

statement paras 2 & 3 have raised the above formal

defects and that the defects are inherent and

apparent on the records, which could lead to dismissal

of suit on technical grounds amounting to formal

defects, not being as to merits of the case.

(v)

That the facts and circumstance of the above

case otherwise give rise to sufficient grounds for

allowing the Plaintiff to institute a fresh suit for the

subject matter of suit/claim as against Defendant

No.6 the contesting Defendant with a comprehensive

suit with pleadings and prayers on same or different

cause of actio