1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE31T DAY OF JANUARY, 2020 BEFORE THE HONBLE MR.JUSTICE G.NARENDAR WRIT PETITION NO.203554/2019 (GM-CPC) BETWEEN :
Satish Daniel S/o S.H. Daniel Age:
75. years Occ: Retd Employee R/o H.No.1-3-5
Ashapur Road, Opp: Rajmata Temple Raichur, presently in United States of America Through His Special Power of Attorney, Martin Luther S/o Jayappa, Age:
54. years, Occ: Pvt. Service, r/o H.No.1-3-582/33, Ashapur Road, Raichur. (By Sri Shivanand Patil, Advocate) And:
1. Smt Philomina W/o John, Age:
44. years, Occ: Teacher R/o H.No.1-11-
Rampur Village Tq & Dist: Raichur-584101. ...... Petitioner
2 2. John S/o Vasant Raj Age:
50. years Occ: Ex-Serviceman R/o H.No.1-11-
Rampur Village Tq & Dist: Raichur-584101 ...... RESPONDENTS
(By Sri Sachin M. Mahajan, Advocate) This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to issue a writ of certiorari or any other order of like nature and quash the impugned order dated 24.06.2019 on I.A.No.6 in O.S. No.71/2017 on the file of the Addl. Senior Civil Judge, Raichur as per the Annexure-E to the writ petition to meet the ends of justice and equity. This petition coming on for Preliminary Hearing B Group this day, the Court made the following:-
"ORDER Heard the learned counsel for the petitioner and the learned counsel for the respondents.
2. The petitioner is before this Court being aggrieved by the order passed by the trial Court on I.A.No.6, filed under Order XXIII Rule 1 r/w Section 151 of Code of Civil Procedure. 3 3. The petitioner is the plaintiff who had preferred the suit praying to grant the relief of declaration, to declare him as the owner and possessor of various suit properties and for further relief in the nature of mandatory injunction to dismantle the construction raised in some of the plots and also for the relief of permanent injunction.
4. It is the case of the plaintiff that while settling the plaint pleadings, he has failed to note that the site numbers are incorrectly mentioned and that by oversight he has failed to notice the error of describing the sites over which the defendants had actually encroached and put up construction and it is also pleaded that after filing of the suit, the first defendant has executed certain documents in favour of the second defendant, on the strength of which the second defendant has put up the constructions. Hence, in the light of the above facts, plaintiff has sought for the relief as permitted under Order XXIII Rule 1 of Code of Civil Procedure. The said application came to be resisted by the respondents defendants. 4 5. The learned counsel for the respondents defendants would submit that the plaintiff ought to have sought for amendment of the pleadings and that in fact the defendants have categorically stated that if he seeks amendment they would not object the same. He would further submit that the same does not amount to a formal defect.
6. The trial Court after appreciating the contentions canvassed on behalf of the defendants has been pleased to reject the application.
7. The learned counsel for the petitioner would take this Court through the order of the trial Court and prima facie this Court is of the opinion that the approach and appreciation of the rulings by the trial Court cannot be approved. The trial Court has failed to look into the fact as to whether the flaws pointed out by the plaintiff if not corrected, would render futile, the exercise before the Court and consequently whether the plaintiff would fail, if 5 those errors had been continued while the suit is taken to its logical end.
8. The trial Court on the other hand placing reliance on the judgment of the High Court of Madras, has failed to take note, that the evidence is yet to commence in the instant suit and that being the admitted position, there is no crystallization of facts. The absence of crystallization of facts could not have been concluded by the Court. There is no diligence by the trial Court. The trial Court failed to appreciate and erred in finding fault with the plaintiff that he has not been diligent.
9. The learned counsel for the respondents would attempt to convince the Court that the relief of amendment would suffice and there is no necessity to permit the plaintiff to withdraw and file a fresh suit on the same cause of action. The trial Court having concluded that the errors would non-suit the plaintiff ought to have in the light of the fact that evidence had not commenced appreciated the relief sought by the petitioner. 6 Accordingly, writ petition is allowed. The application I.A.No.6 filed by the petitioner plaintiff is allowed. The petitioner is permitted to withdraw the suit with liberty to re-file on the same cause of action within 30 days from the date of receipt of certified copy of this order. Sd/- JUDGE BL