Rajagouda vs Sunanda

H. Billappa, J.—This revision petition is directed against the order dated 28.2.2013 passed by the Senior Civil Judge, Raibag, in O.S. No. 91/12 on I.A. No. 3.

By the impugned order, the trial court has allowed I.A. No. 3 and has permitted the respondents to withdraw the suit with liberty to file fresh suit on the same cause of action.

Aggrieved by that, the petitioner has filed this revision petition.

Briefly stated the facts are:

The respondents 1 and 2 had filed suit in O.S. No. 91/12 for partition and separate possession of the suit properties. After service of summons the petitioner has appeared in O.S. No. 91/12. Thereafter, the respondents have filed I.A. No. 3 to permit them to withdraw the suit with liberty to file fresh suit on the same cause of action. The Trial Court by its order dated 28.2.2013 has allowed I.A. No. 3. Thereafter, the respondents 1 and 2 have filed fresh suit in O.S. No. 48/2013. It is at the stage of framing issues. In the meanwhile, the petitioner has filed this revision petition challenging the order dated 28.2.2013 passed by the trial court in O.S. No. 91/12 on I.A. No. 3.

The learned Counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the impugned order is contrary to Order XXIII Rule 1(3) of CPC. The suit is filed by respondents 1 and 2. The 1st respondent has not consented for the withdrawal of the suit. Therefore, the trial court was not justified in allowing I.A. No. 3. Therefore, the impugned order cannot be sustained in law.

As against this, the learned Counsel for the respondents submitted that the impugned order does not call for interference. He also submitted that the suit suffered from defects and therefore the respondents applied for withdrawal and the trial court has allowed it. The petitioner has received the costs. Thereafter, the respondents have filed fresh suit. The petitioner has appeared in the fresh suit and has filed his written statement. The application for withdrawal was filed by both the respondents. This itself shows that there was consent to withdraw the suit. After withdrawal fresh suit has been filed and it is at the stage of framing issues. Therefore, the impugned order does not call for interference. He placed reliance on the decision of the Hon''ble Supreme Court in Vimlesh Kumari Kulshrestha Vs. Sambhajirao and Another, .

I have carefully considered the submissions made by the learned Counsel for the parties.

The point that arise for my consideration is:

Whether the impugned order calls for interference?

It is relevant to note, the suit in O.S. No. 91/12 was filed by the respondents for partition and separate possession of the suit properties. The petitioner has appeared in O.S. No. 91/12. Thereafter, the respondents have filed I.A. No. 3 to withdraw the suit with liberty to file fresh suit on the same cause of action as some facts were left out and necessary parties were not impleaded. In the affidavit filed in support of the application it is not stated that the first respondent has consented for withdrawal. However, the fact remains that the suit was filed jointly and the application for withdrawal was also filed jointly. No doubt, there is no specific mention in the affidavit that the first respondent has consented for withdrawal. But the fact remains that the application was filed jointly and the case was withdrawn and subsequently fresh suit has been filed jointly by rectifying the mistakes. In the circumstances, it cannot be said that there was no consent of the first respondent. The petitioner has participated in O.S. No. 48/2013. It is at the stage of framing issues. Therefore, in the circumstances, the impugned order does not call for interference.

Accordingly, the revision petition is dismissed.

I.A. No. 1/2013 does not survive for consideration and it is rejected.