IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 15^TH DAY OF NOVEMBER 2021

BEFORE

THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

W.P.No.104331/2021 (GM-CPC)

BETWEEN:

1.

Smt. Yallavva W/o. Shekhappa Rayar,

Age: 71 years, Occ: Household,

R/o. Sadageri Oni, Kundagol-581113,

Dist: Dharwad.

2.

Smt. Kasturi W/o. Siddappa Konnur,

Urf Swapna Siddappa Gubachi

Age: 32 years, Occ: Household,

R/o. Bidari-586125, Tq. Jamakhandi,

Dist: Bagalkot

3.

Smt. Ratnavva

W/o. Girishappa Kashattigoudra,

Age: 30 years, Occ: Household,

R/o. Madaki Chinnur,

Tq. & Dist: Shivamogga-577201

4.

Smt. Savitri W/o. Gangappa Palled,

Age: 28 years, Occ: Household,

R/o. Sadageri Oni, Kundagol-581113,

Dist: Dharwad.

5.

Smt. Mangala W/o. Mallappa Tamboori,

Age: 26 years, Occ: Household,

R/o. Tavarageri, Tq. Kalaghatagi-581204,

Dist: Dharwad.

6.

Shri Fakkiresh W/o. Shekhappa Rayar,

Age: 24 years, Occ: Agriculture,

R/o. Sadageri Oni, Kundagol-581113,

Dist: Dharwad.

… Petitioners

(By Shri K.S. Patil, Advocate)

: 2 :

AND:

1.

Smt. Yallavva

W/o. Mahadevappa Gangayi,

Age: 86 years, Occ: Household,

R/o. Shambhavar Oni,

Kundagol-581113, Dist: Dharwad.

2.

Shri Basappa

S/o. Mahadevappa Gangayi,

Age: 26 years, Occ: Agriculture,

R/o. Shambhavar Oni,

Kundagol-581113, Dist: Dharwad.

3.

Smt. Shantavva

W/o. Mahadevappa Gangayi,

Age: 81 years, Occ: Household,

R/o. Shambhavar Oni, Kundagol-581113,

Dist: Dharwad.

4.

Shri Kallappa

S/o. Mahadevappa Gangayi,

Age: 23 years, Occ: Pvt. work,

R/o. Shambhavar Oni, Kundagol-581113,

Dist: Dharwad.

5.

Shri Shekhappa

S/o. Fakkirappa Rayar,

Age: 76 years, Occ: Pvt. work,

R/o. Sadageri Oni, Dist: Dharwad.

Kundagol-581113,

6.

Smt. Girijavva

W/o. Rudrappa Bachcher,

Age: 36 years, Occ: Household,

R/o. Hollur-577216

Tq. & Dist: Shivamogga.

… Respondents

This writ petition is filed under Articles 226 & 227 of the

Constitution of India praying to issue writ in the nature of certiorari

or any other appropriate writ to quash the order dated 08.09.2021

dismissing I.A. No.III, filed under Order 23 Rule 1(3)(b) of CPC,

1908 seeking to withdraw the suit filed in O.S. No.12/2019 on the

file of the Civil Judge Junior Division and JMFC, Kundagol vide

Anneuxre-A.

This petition coming on for orders, this day, the Court made

the following:

: 3 :

ORDER

1.

An application was filed seeking permission to

withdraw the suit with liberty to file fresh suit.

2.

The

affidavit

filed

in

support

of

the

said

application, it was stated that the suit schedule property was

valued for Rs.1,000/-, but during the course of cross-

examination, it had been stated that the value of the suit

schedule property was 30 to 35 lakhs and hence, the Court

did not possess pecuniary jurisdiction. The another contention

advanced was that, all the family properties were not included

in the schedule and therefore there was a technical defect.

3.

The Trial Court took the view that if the Court

comes to the conclusion that it did not possess pecuniary

jurisdiction, it would return the plaint and therefore that could

not be construed as a formal defect as contemplated under

Order 23 Rule 1(3)(b) of the CPC.

4.

As far as inclusion of all family properties was

concerned, the Court has taken the view that it was

permissible for the plaintiff to include all suit schedule

properties by filing an appropriate application and viewed

: 4 :

from any angle, the grounds permissible for withdrawal of the

suit reserving liberty to file fresh suit were not made out and

hence, the application was liable to be dismissed.

5.

In my view, the reasoning assigned by the trial

Court cannot be found fault with. The Trial Court has clearly

noticed that none of the grounds raised in support of the

application could be construed as formal defects, to enable to

the plaintiff to withdraw the suit reserving liberty to file a

fresh suit.

I