Kariyappa Vs. Hanumanthappa - Court Judgment

R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE8H DAY OF JUNE2021BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM C.R.P.No.100100/2016 BETWEEN: KARIYAPPA S/O SANNAPPA UPPUNASHI AGE:

70. YEARS OCC: AGRICULTURE R/O MUTTUR, TQ: BYADGI, DT: HAVERI. ... PETITIONER (BY SRI.P.G.MOGALI, ADVOCATE) AND:

1. HANUMANTHAPPA S/O SIDDAPPA UPPUNASHI AGE:

56. YEARS R/O MUTTUR, TQ:BYADGI, DT: HAVERI. SINCE DECEASED BY HIS LR1a).SMT.VINODAVVA, W/O LATE HANUMANTHAPPA UPPUNASHI, AGE:

44. YEARS, OCC: HOUSEHOLD, R/O: MUTTUR, TQ: BYADGI, DT: HAVERI. 2

2. VEERAPPA S/O SIDDAPPA UPPUNASHI, AGE:

52. YEARS, R/O MUTTUR, TQ: BYADGI, DT: HAVERI.

3. SHANKRAPPA, S/O SIDDAPPA UPPUNASHI, AGE:

48. YEARS R/O MUTTUR, TQ: BYADGI, DT: HAVERI. ... RESPONDENTS (BY SRI.M.H.PATIL AND SRI.HARSHAWARDHANA.M.PATIL, ADVOCATES FOR R2 & R3; R1(a) IS SERVED) THIS CRP IS FILED UNDER SEC.115 OF CPC AGAINST THE ORDER

DATED:23.09.2016 PASSED IN O.S. NO.122/2008 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JUDICIAL MAGISTRATE FIRST CLASS BYADGI, ALLOWING THE IA NO.11 FILED BY THE PLAINTIFF U/O23RULE13)(A) OF CPC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER

S ON1603.2021 COMING ON FOR PRONOUNCEMENT OF ORDER

S THIS DAY, THE COURT MADE THE FOLLOWING:

3. ORDER

The captioned civil revision petition is filed by the defendant questioning the order dated 23.09.2016 passed on I.A.No.11 filed under Order 23 Rule 1(3)(a) of CPC in O.S.No.122/2008 as per Annexure-F permitting the respondents/plaintiffs to withdraw the suit with liberty to file a fresh suit.

2. The facts leading to the case are as under: The respondents/plaintiffs instituted suit in O.S.No.122/2008 against the present petitioner/defendant seeking relief of declaration of title of the suit property bearing VPC No.33 (present VPC No.29) and also sought for consequential relief of injunction.

3. On receipt of summons, the present petitioner/defendant tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. 4

4. Based on the pleadings, the learned Judge formulated issues and both the parties lead in evidence to substantiate their claim. Both the parties addressed their arguments on the main matter and at that stage, the respondents/plaintiffs filed an application in I.A.No.10 seeking amendment of plaint. The amendment was sought to bring in correction to the property number in the plaint as well as in the suit schedule. After hearing both the parties, the learned Judge rejected I.A.No.10 by order dated 24.06.2016. Being aggrieved by the order on I.A.No.10, the respondents/plaintiffs filed application in I.A.No.11 under Order 23 Rule 1(3)(a) of CPC requesting the Court to permit the respondents/plaintiffs to withdraw the suit with liberty to file a fresh suit.

5. In support of their contention, the respondents/plaintiffs specifically contended in the affidavit that at the time of institution of the suit, the suit schedule property was wrongly described as VPC Nos.28 5 and 29. The respondents/plaintiffs claim that the correct description of the property is VPC Nos.30 and 33 and therefore, the respondents/plaintiffs sought for amendment of the plaint by filing I.A.No.10. Since the said application was rejected, the respondents/plaintiffs have come up with this application. The respondents/plaintiffs claim that there is a formal defect in the plaint and if petitioner/defendant proceed with the suit, the same would be detrimental to their interest and therefore, they sought leave of the Court to withdraw the suit with liberty to file a fresh suit.

6. The said application was strongly resisted by the petitioner/defendant by filing detailed objections.

7. The learned Judge by examining the rival contentions of the parties allowed the application by holding that there is formal defect and the said defect can be cured only by filing a fresh suit. The learned Judge was also of the view that the burden would still lie on the 6 plaintiffs to establish their right and title. On these set of reasonings, the learned Judge has allowed the application filed in I.A.No.11 permitting the respondents/plaintiffs to withdraw the suit with liberty to file a fresh suit.

8. Assailing the correctness of the order under challenge, the petitioner/defendant is before this Court.

9. Learned counsel appearing for the petitioner would vehemently argue and contend before this Court that the present petitioner had filed written statement on 21.04.2009 and the petitioner/defendant had rightly pointed out the mistake in regard to mentioning the property number in the plaint as well as the boundary. This misdescription of the suit schedule property was brought to the notice of the respondents/plaintiffs way back in 2009. Learned counsel would further submit to this Court that, however, the plaintiffs proceeded with the suit, lead evidence and it is after 8 years when the matter is posted for arguments, the present application is filed 7 seeking permission to withdraw the suit and to file a fresh suit. He would also submit to this Court that the present application in I.A.No.11 is filed to overcome the order dated 24.06.2016 passed on I.A.No.10. He would also submit to this Court that similar application which was filed in I.A.No.10 seeking amendment of the plaint was rightly rejected and therefore, to cure the very same defect, the respondents/plaintiffs cannot be permitted to withdraw the suit and file a fresh suit. He would submit to this Court that the Hon’ble Apex Court in catena of judgments has held that withdrawal of suit at the fag end more particularly, when the matter is set in for arguments cannot be entertained.

10. To buttress his arguments, learned counsel appearing for the petitioner would place reliance on the following judgments:

1. Siddagangappa Vs. Thimmanna - 2002(3) KCCR20888 2. Sayed Mansoor Saheb Peer Bije Mustfapur andOrs. Vs. The State of Orissa and Ors.-. AIR2007Orissa Page 31 3. V.Narayanappa Vs. Narayanappa and Anr.-. AIR1971Mysore 334 4. Sate of Gujarat and Ors. Vs. Mahendrakumar Parshottambhai Desai and Ors.-. AIR2003Guj (DB) 5. B.N.Sreenath Bhat Vs. Smt.Jayalakshmi and Others - 2015 (4) KCCR39526. Menawwa Vs. Chandranappa Sangappa Rolli - 1978 (2) KLJ847. C.Baghyalakshmi. Vs. P.Irulappan and Another - AIR2007(NOC) 809 Madras 8. Rame Gowda & Ors. Vs. S.V.Krishnaiah & Anr.-. 1980 (2) KLJ3909. D.P.Mohapatra And K.G Vs. Balakrishnan.JJ - AIR2002SC276810. K.S.Bhoopathy & Ors. Vs. Kokila & Ors - AIR2000SC2132 11. Learned counsel for respondent Nos.2 and 3 further repelling the contentions raised by the petitioner would, however, support the order under challenge and would place reliance on the judgment passed by this Court in CRP.No.100111/2016. Placing reliance on this judgment, learned counsel appearing for respondent Nos.2 and 3 would submit to this Court that the Court below has rightly exercised discretion having examined the 9 averments made in the affidavit filed in support of I.A.No.11 and therefore, the order under challenge is in accordance with law and would not warrant any interference by this Court. Learned counsel for respondent Nos.2 and 3 would vehemently argue and contend before this Court that the defect is a formal defect which goes to the root of the case and therefore, the learned Judge having satisfied himself and having rightly come to conclusion that the plaintiffs would fail by reason of formal defect has rightly allowed the application filed in I.A.No.11 by exercising judicial discretion. On these set of defences, the learned counsel appearing for the respondent Nos.2 and 3 would submit to this Court that the revision petition is devoid of merits and the same is liable to be dismissed.

12. Heard learned counsel for the petitioner/defendant and learned counsel for respondent Nos.2 and 3. Respondent No.1(a) has remained absent 10 and has not chosen to contest the present proceedings. I have meticulously examined the pleadings of the parties and other materials which are placed on record. I have also given my anxious consideration to the order under challenge.

13. The learned Judge has allowed the application filed in I.A.No.11 on the premise that the respondents/plaintiffs are intending to withdraw the suit on account of a formal defect. Therefore, the learned Judge was of the view that it can be cured only by way of filing a fresh suit. Learned Judge was also of the view that no prejudice would be caused to the present petitioner/defendant. The respondents/plaintiffs have instituted suit in O.S.No.122/2008 for bare injunction. The suit is filed on 09.07.2008. Along with the plaint, the respondents/plaintiffs have also furnished the sketch. The respondents/plaintiffs have described the suit schedule property as VPC No.33 (corresponding new No.29) and in 11 the sketch, it is shown to be a vacant site situated towards southern side of the respondents/plaintiffs’ residential house. The present petitioner, on receipt of summons, has tendered appearance and filed written statement. The present petitioner has stoutly denied the entire averments made in the plaint and a specific contention is taken alleging that the present suit is instituted by stating wrong description of the suit schedule property. To counter the pleadings and sketch, the present petitioner has not only pleaded in the written statement but has also furnished the sketch along with the written statement. This written statement is filed on 21.04.2009. In this background, the contention of the respondents/plaintiffs needs to be examined by this Court and also the Court has to examine whether the Court below has applied its mind before permitting the plaintiffs from withdrawing the suit with liberty to file a fresh suit on same cause of action. 12

14. What is to be borne in mind is that, this litigation was initiated in 2008 and we are in 2021. The petitioner/defendant has notified the respondents/plaintiffs in regard to defect in the description of the suit schedule property way back in 2009. The object of Order 23 Rule 1 of CPC is not to allow the plaintiff with an opportunity of commencement of trial afresh after he has failed to conduct the suit with care and diligence to substantiate his case by evidence. The Court while dealing with an application under Order 23 Rule 1 of CPC has to specifically state the formal defect entailing withdrawal of the suit in its order granting permission to withdraw the suit with liberty to file a subsequent suit. The learned judge has not examined the conduct and laxness on the part of the respondents/plaintiffs in not seeking appropriate amendment when they were notified by the petitioner/defendant by filing written statement. Respondents/plaintiffs were aware of misdescription since the petitioner/defendant exposed the same in the written 13 statement and therefore, at this juncture, when the matter is set in for arguments, the respondents/plaintiffs cannot set at naught the entire process that has to follow by taking recourse to the provisions of Order 23 Rule 1(3) of CPC.

15. It is trite law that the object of rule is not to enable the plaintiff if he has failed to conduct the suit with proper care and diligence, to obtain an opportunity of commencement of trial afresh in order to avoid previous bad conduct of the case so as to prejudice the opposite party.

16. The defect in the suit must be one not affecting the merits of the case and the said error should arise on account of good faith by the plaintiff which can only be effectively set right by a trial de-novo. The grant of liberty envisaged in sub-Rule (3) of Rule 1 of Order 23 is at the discretion of the Court. But such discretion is to be exercised by the Court with caution and circumspection. 14 Merely stating that the grant of liberty would not prejudice the defendant is not compliance with statutory mandate. The discretion can be exercised only under two conditions namely,

1) When the application itself should be bonafide and

2) either of the two grounds specified in clause (a) or clause (b) of sub-rule (3) of Rule 1 of Order 23 are fulfilled.

17. If the averments made in the affidavit filed in support of I.A.No.11 are meticulously examined, I would find that these ingredients are missing and the learned Judge has mechanically allowed the application without examining the cascading effect in the form of financial and hardship in fighting the litigation that has to be borne by the petitioner/defendant. The suit was instituted way back in 2008 and after 13 years, the respondents/plaintiffs now, at this juncture, when the matter is set in for arguments intend to withdraw the suit. I am not satisfied with regard to the existence of proper grounds for 15 granting permission. If on account of defect in the description of the schedule property would end up in adverse order against the respondents/plaintiffs, it is open for the respondents/plaintiffs to have recourse to the remedy available to them by way of an appeal. In the event suit goes against the respondents/plaintiffs, they would also have an opportunity in questioning the order passed on I.A.No.10 which was filed seeking amendment of the description.

18. Therefore, I am of the view that, at this stage, the respondents/plaintiffs cannot be permitted to file a fresh suit which would cause immense irreparable loss and would also cause financial burden on the petitioner/defendant in defending a fresh litigation. The fact that the petitioner/defendant has to again undergo long ordeal of fighting a litigation cannot be compensated in terms of money or cost. The judgments cited by the learned counsel for the petitioner are squarely applicable 16 to the present case on hand. The judgment cited by the learned counsel for the respondent Nos.2 and 3 is not applicable as the facts and circumstances of the case in that case are totally different. In the judgment cited by the learned counsel for the respondent Nos.2 and 3 that was a case where the plaintiff found the defect and therefore, the application was filed. In the present case on hand, the defendant though notified the defect in the description way back in 2009, the respondents/plaintiffs being aware of the defect in the description have consciously proceeded with the trial on the same set of pleadings and documents and the trial is concluded. Therefore, the entire exercise undertaken by the respondents/plaintiffs lacks bonafide and therefore, I am of the view that the order under challenge passed by the learned Judge suffers from serious material irregularity and the same is liable to be set aside by this Court. 17

19. For the foregoing reasons, I pass the following: ORDER

The civil revision petition is allowed. The impugned order dated 23.09.2016 passed on I.A.No.11 filed under Order 23 Rule 1(3)(a) of CPC in O.S.No.122/2008 as per Annexure-F is set aside. Sd/- JUDGE CA