Smt. Roopa. K.R., learned High Court Government Pleader

accepts notice for respondents 1 and 2.

3

2. This Writ petition is filed by the plaintiffs in Original Suit

No.26186 of 2014 on the file of the LXXII Additional City Civil

and Sessions Judge, Mayo Hall, Bengaluru (for short, hereinafter

referred to as 8trial Court9), challenging the order date 24^th

February, 2022 passed on IA.2 of 2021 filed by the plaintiffs

under Order XXIII Rule 1(3) read with Section 151 of the Civil

Procedure.

3. The plaintiffs have filed suit for permanent injunction

against the defendants/respondents herein. The defendants

entered appearance and contested the matter. In the

meanwhile, the plaintiffs have filed IA.2 of 2021 under Order

XXIII Rule 1(3) read with Section 151 of the Civil Procedure

Code to withdraw the suit with liberty to file a fresh

comprehensive suit. The said application was contested by the

defendants. The trial Court, after considering the material on

record, by order dated 24^th February, 2022 dismissed IA.2 of

2021. Feeling aggrieved by the same, plaintiffs have preferred

this writ petition.

4

4. Sri. Vijaya Kumar K., learned counsel appearing for

petitioners contended that the only ground on which the trial

Court dismissed application is that the statutory notice, as

required under Section 80 of the Civil Procedure Code, was not

taken against the defendants in the suit. Therefore, he submits

that the said defect could be cured in the comprehensive suit

that may be filed by the petitioners.

5. The said submission was opposed by Smt. Roopa K.R.,

learned High Court Government Pleader. She contended that the

impugned order passed by the trial Court is just and proper and

the same does not call for any interference in this writ petition.

6. Having heard the learned counsel appearing for parties,

the prayer made in the plaint is with regard to seeking

permanent injunction against the defendant/ respondents herein.

However, during the course of the proceedings, it is the

allegation

made

by

the

plaintiffs

that

the

defendants/respondents herein have encroached the portion of

land belonging to the plaintiffs. I have also carefully considered

5

the finding recorded by the trial Court with regard to taking

notice under Section 80(2) of the Civil Procedure Code.

7. Having heard the learned counsel appearing for parties,

I am of the view that the trial Court ought to have held that the

formal defect in the plaint curable and could have ordered for

withdrawal of the suit with liberty to file a comprehensive suit as

the plaintiffs have alleged that the defendants have encroached

the portion of the land in question. In that view of the matter, I

am of the view that the writ petition deserves to be allowed

rejecting the order dated 24^th February, 2022 passed by the trial

Court,

dismissing

IA.2

of

2021

filed

by

the

plaintiffs.

Accordingly, for the reasons stated above, IA.2 of 2021 filed by

the plaintiffs is allowed reserving liberty to petitioners to file

comprehensive suit against the defendants, if so advised.

Sd/-

JUDGE

ARK