Shivakumaraswamy Vs. Lingappa

Shivakumaraswamy vs Lingappa

Disposition Petition dismissed Court Karnataka Decided Jul 30, 1991

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Citation: sooperkanoon.com/385028
Court: Karnataka High Court
Judge: P.K. Shyamsundar, J.
Decided On: Jul 30, 1991
Case Number: C.R.P. No. 2786 of 1989
Subject: Civil
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

CIVIL PROCEDURE CODE, 1908 (Central Act No. 5 of 1908) - Order 23 Rules 1(3) & (5) - Scope & ambit - Leave being granted to settle matter out of Court but refusing permission to file fresh suit, glaring error - Leave not to be granted, without consent of co- plaintiffs. ; A combined reading of Sub-rules (3) ...

Key legal issue: Civil
Outcome / disposition: Petition dismissed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(3) and 1(5)

Parties & Advocates

Appellant / Petitioner

Shivakumaraswamy

Advocate R. Sridhar Hiremath, Adv.

Respondent

Lingappa

Advocate G.S. Visweswara, Adv. for R-1 to R-3

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(3) and 1(5)
Reported In: ILR1991KAR3991

Excerpt

.....the presumption under section 139 of the negotiable instruments act extends not only to the issuing of the said cheque towards existing legally recoverable debt, but also to the existence of legally enforceable debt as on the date of its issue. on facts held, the accused has successfully established his defence version by adducing his own evidence and also by eliciting in the cross-examination of pw1, and also by producing ex.d1, the statement of his accounts with his banker. therefore, it is quite clear that as on the date of the cheque in question, which came to be presented during the year 2004, there did not exist any legally enforceable debt payable by the accused to the complainant. hence, conviction and sentence passed by the trial court/affirmed by the appellate court is not sustainable in law. a. viswanatha pai v vivekananda s. bhat. [cri.r.p.no.172/2008, dd 20.9.2008]. - 1. clearly the court has committed a faux pas in passing the impugned order under which it permits the petitioner to withdraw the suit while refusing the prayer to renew the suit on the same cause of action. rule (3) where the court is satisfied -(a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. ' a combined reading of sub-rules (3) and (5) of order 23 makes it evident that where the court is satisfied that a suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit regarding the subject-matter of the suit or part of a claim it will then allow him to withdraw the suit, necessarily reserve to such plaintiff liberty to file a..........the petitioner to withdraw the suit while refusing the prayer to renew the suit on the same cause of action. the order in question was made at the behest of the plaintiff who is the petitioner in this case pursuant to an application made under order 23 rule 1 c.p.c. seeking leave to withdraw the suit with liberty to file a fresh suit on the same cause of action. there were in all five parties to the suit. plaintiff-1 is the petitioner herein. plaintiff-2 is respondent- 4. defendant-1 is the father of plaintiffs 1 and 2 and defendants 2 and 3. the suit was for partition of several properties. 2. out of the suit properties, one item was claimed to be the self acquisition of the father in which stand he received support from the second respondent who is the other son. the suit was pending for some time. the plaintiff later thought it fit not to antagonise his father who it is said had assured the petitioner a share in the property if he withdrew the suit, had therefore filed an application under order 23 rule 1 referred to supra. on that application the learned judge passed the impugned order granting permission to withdraw but refusing leave to renew the suit at a later stage. 3. the order in question, said to be one passed under order 23 rule 1 (3) reads: 'in the result, for the foregoing reasons, i.a.viii is hereby allowed further it is ordered that the plaintiffs are not permitted to file a fresh suit on the same cause of action. consequently, the plaintiff's suit is hereby dismissed. considering the peculiar circumstances of the case, i direct each party to bear his or their own costs.' rules 3 and 5 of order 23 of the c.p.c. being the relevant provisions to note read: 'rule (3) where the court is satisfied - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit,.....

Full Judgment

ORDER

Shyamsundar, J.

1. Clearly the Court has committed a faux pas in passing the impugned order under which it permits the petitioner to withdraw the suit while refusing the prayer to renew the suit on the same cause of action. The order in question was made at the behest of the plaintiff who is the petitioner in this case pursuant to an application made under Order 23 Rule 1 C.P.C. seeking leave to withdraw the suit with liberty to file a fresh suit on the same cause of action. There were in all five parties to the suit. Plaintiff-1 is the petitioner herein. Plaintiff-2 is respondent- 4. Defendant-1 is the father of plaintiffs 1 and 2 and defendants 2 and 3. The suit was for partition of several properties.

2. Out of the suit properties, one item was claimed to be the self acquisition of the father in which stand he received support from the second respondent who is the other son. The suit was pending for some time. The plaintiff later thought it fit not to antagonise his father who it is said had assured the petitioner a share in the property if he withdrew the suit, had therefore filed an application under Order 23 Rule 1 referred to supra. On that application the learned Judge passed the impugned order granting permission to withdraw but refusing leave to renew the suit at a later stage.

3. The order in question, said to be one passed under Order 23 Rule 1 (3) reads:

'In the result, for the foregoing reasons, I.A.VIII is hereby allowed further it is ordered that the plaintiffs are not permitted to file a fresh suit on the same cause of action. Consequently, the plaintiff's suit is hereby dismissed. Considering the peculiar circumstances of the case, I direct each party to bear his or their own costs.'

Rules 3 and 5 of Order 23 of the C.P.C. being the relevant provisions to note read:

'Rule (3) Where the Court is satisfied -

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.

Rule (5) Nothing in this Rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub- rule (3), any suit or part of a claim, without the consent of the other plaintiffs.'

A combined reading of Sub-rules (3) and (5) of Order 23 makes it evident that where the Court is satisfied that a suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit regarding the subject-matter of the suit or part of a claim it will then allow him to withdraw the suit, necessarily reserve to such plaintiff liberty to file a fresh suit in respect of the subject matter of the suit or such part of the claim etc. This is a case in which the Court had granted leave to withdraw the suit to enable the plaintiff to settle the matter out of Court with his father. In those circumstances the Court should have necessarily armed the plaintiff with the liberty to file a fresh suit while granting leave to withdraw the suit so that he can join in legally if there was no settlement. But the learned Judge, as stated earlier, in the course of the impugned order granted leave but refused permission to file a fresh suit at a subsequent stage has thus committed a glaring error in passing the order. But that does not bring any solace to the petitioner in view of Sub-rule (5) of Order 23 which enjoins that where there are several plaintiffs, one of them alone cannot withdraw the suit under Sub- rule (3) or part of a claim without the consent of the other plaintiffs. It is not denied that the petitioner herein had not obtained the consent of the other plaintiff who is none other than his brother. Under the circumstances this is a case in which the Court could not have granted the leave sought for acting under Order 23 Rule 3 at all. Thus the petitioner finds himself in a no-win position, that is because neither he nor the Court had appropriately acquainted themselves with the provisions referred to above.

4. In the circumstances, this Revision Petition fails and is hereby dismissed, inter alia, the application made by the petitioner under Order 23 C.P.C. i.e., I.A.VIII also stands rejected.

Same Court & Year Karnataka · 1991 Same Parties Shivakumaraswamy vs Lingappa Same Subject Civil Same Judge P.K. Shyamsundar, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(3) an...

Civil