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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15^TH DAY OF FEBRUARY, 2021

BEFORE

THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO.51356 OF 2016 (GM-CPC)

BETWEEN

SRI B.M. DEVAIAH

S/O SRI B.K. MUTHANNA

AGED ABOUT 59 YEARS

R/AT NO.C-11

HYDE PARK, WHITEFIELD

BANGALORE-560066.

… PETITIONER

(BY SRI B RAMESH, ADVOCATE)

AND

1. SRI C.P. MUTHANNA

S/O SRI C.K. MUTHANNA

AGED ABOUT 77 YEARS

R/AT SITE NO.56, HINKAL VILLAGE

MYSORE-570017.

2. SMT. KITTY MANDANNA

W/O SRI K.M. MANDANNA

AGED ABOUT 72 YEARS

R/AT K. HEMMANAHALLI VILLAGE

MARTI KYATHANAHALLI POST OFFICE

MYSORE-570005.

PRESENTLY RESIDING AT

P-2, SAMBRAM APARTMENTS

GOKULAM MAIN ROAD

V.V.MOHALLA POST OFFICE

MYSORE-570002.

… RESPONDENTS

( BY MR. S SRIRANGA, ADV FOR R1

MR. N KUMAR, ADV FOR R2

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED

ORDER DATED 07.09.2016 MARKED AS ANNEXURE-A PASSED

R

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BY THE HON’BLE TRIAL COURT ON IA NO.20/2014 FILED BY

THE PETITIONER HEREIN UNDER ORDER 1 RULE 10(2) OF

CODE OF CIVIL PROCEDURE, 1908 IN O.S.NO.98/1986 AND

ALLOWED THE APPLICATION AS PRAYED FOR AND ETC.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING

IN

‘B’

GROUP,

THIS

DAY

THROUGH

VIDEO

CONFERENCE, THE COURT MADE THE FOLLOWING:

ORDER

The subject suit in O.S.No.98/1986 is for a decree of

dissolution of Partnership Firm and for the rendition of

accounts; petitioner happens to be the first defendant; first

respondent happens to be the second defendant and second

respondent is the plaintiff; a Preliminary Decree for

dissolution of the Firm is entered on 31.08.1990; the enquiry

as to rendition of accounts & mesne profits is stated to be

pending; at this stage, the plaintiff moved a memo seeking

leave of the Court below for withdrawal of the suit and the

same is rejected on 29.08.2016.

2.

Petitioner moved the subject application under

Order I Rule 10(2) although the right provision is Order XXIII

Rule 1A of the Code seeking his transposition as the plaintiff

since, the original plaintiff wanted to withdraw the suit by

filing application under Order XXIII Rule 1; pursuant to the

Preliminary Decree in question there was FDP in which a

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warrant of arrest has been issued against the first respondent

herein; his challenge thereto in Writ Petition, in Writ Appeal &

later in SLP has been dismissed; the request for transposition

having been opposed by the respondents herein, the learned

trial judge vide order dated 07.09.2016 a copy whereof is at

Annexure-A has rejected the request; that is how, this writ

petition has arisen.

3.

After service of notice, the respondents having

entered appearance through their counsel resist the writ

petition contending that: there is no identity of the claim of

the petitioner in the Written Statement with that in the plaint;

the petitioner has not filed the Counter Claim; plaintiff being

the dominant litus, can seek the withdrawal of the suit and

such an application is very much pending; there is another

kindred comprehensive suit in O.S.No.557/2012 filed by the

first respondent wherein petitioner being the first defendant

can workout his remedy which he wants to achieve by the

intended transposition; so contending, both the learned

advocates appearing for the respondents press for the

dismissal of the writ petition.

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4.

Having heard the learned counsel for the parties

and having perused the petition papers, this Court is inclined

to grant indulgence in the matter as under and for the

following reasons:

a) As already mentioned above, the subject suit is one

for the dissolution of Partnership firm and rendition of

accounts; a Preliminary Decree is made on 31.08.1990 and

firm is held to be dissolved w.e.f. 14.06.1985; accordingly the

decree has also been drawn on 31.07.1991; the enquiry a