Sri. Bettegowda (since dead) by his LRs (Gowramma and Others) vs Puttaswamygowda, Smt. Kalyanamma and Kumara Gowda

Anand Byrareddy, J.—The appeal coming on for final hearing, the learned Counsel for the Appellants, at the first instance, would submit that there is a gross infirmity committed by the Plaintiff in tendering evidence which was inaccurate and contrary to the material documents on record, in that, as found by the trial court, the evidence that was tendered by the Plaintiff was totally inapposite to the sale deed and was contrary thereto. Both the courts below have overlooked the fact that the title deeds took precedence. The Plaintiff though had tendered inaccurate evidence, the trial court having relied upon ketch to hold that the Plaintiff had failed to establish his case, while ignoring the title deeds, is an infirmity which could be the substantial question of law to be considered in the present appeal. The fact remains that the Plaintiff had bungled in tendering evidence which has resulted in the suit being dismissed. The Plaintiff had the option of seeking permission of the trial court to withdraw the suit at that stage and to file a fresh suit. As by efflux of time, the property as it stood, was not the same as defined in the sale deeds, Exhibits P.1 to P.3. Therefore, he would submit that the suit has failed on account of a formal defect in the Plaintiff having tendered inaccurate evidence in the face of material evidence which was certainly in favour of the Plaintiff''s case and the same having been prosecuted with that infirmity has suffered a further dismissal of the appeal. In this second appeal the learned Counsel for the Appellants would seek indulgence of this Court to withdraw the suit and to file a comprehensive suit for declaration and seek such other consequential reliefs.

While the learned Counsel for the Respondents would take serious exception to such a request being made in a second appeal and would point out that if the cause of action has arisen for the appeal in the year 1991, the question of the Appellant being permitted to withdraw the suit at this point of time, after he has suffered two judgments and decrees of the courts below and to file a fresh suit, would be wholly untenable. The effect of such withdrawal and permission to file a fresh suit would result in two well considered judgments of the courts below being set at naught which is not contemplated in law. He would further submit that a suit for declaration or recovery of possession being wholly barred by time, if the cause of action is to be taken as of the year 1991, the question of the Appellant being permitted to withdraw the suit and to file a fresh suit would be wholly illegal and therefore, would oppose any such prayer being considered as the appeal itself would have to fail on merits.

While it is true that the present Appellant is not in a position to file a fresh suit based on the cause of action of the year 1991. The cause of action that arose in the year 1991 was in relation to the alleged interference by the Defendants in the suit property. The Appellant would now contend that the discrepancy and the inconsistency insofar as the material documents and the Plaintiff''s evidence was the reason for the dismissal of a bare suit for injunction. This ought not to preclude the Plaintiff, who is otherwise in a position to establish that: the suit property is the property covered under Exhibits P.1 to P.3 and therefore, the Plaintiff is entitled to the relief of protecting the fame being available, it would be a travesty of justice to shut out the Appellant, on the footing that any contemplated suit would be barred by time. The cause of action to seek a declaration while conceding that there was a defect in the evidence tendered, which was contrary to the material documents, which ought to have prevailed, is therefore, a reasonable prayer which cannot be denied to the Appellant, since the Defendants can always be compensate or the inconvenience, if any, in having to face fresh proceedings by virtue of the Appellant being permitted to withdraw the suit and to file a fresh suit. The argument of the counsel for the Appellant does not sound unreasonable. Though the Defendants would be put to inconvenience and hardship, by having to suffer the proceedings over again, the Defendants could be adequately compensated in terms of money and to lessen the strain of the parties in having to further litigate, it is more appropriate if the Appellant is permitted to amend the pleadings before the trial court and to tender evidence afresh in relation to those pleadings on payment of costs to the Defendant. And, if the Defendants also are permitted to meet those pleadings and to tender their evidence afresh, interests of justice would be met. On amendment, the suit could be continued as if it is a suit originally brought against the Defendants. Since this was a measure the Appellant ought to have taken and could have taken at the stage of trial, this Court, in the above facts and circumstances, does permit the Appellant to withdraw the appeal with liberty to approach the trial court and file an appropriate application seeking amendment of pleadings and to prosecute the suit afresh.

In the result, the appeal is allowed. The judgment and decree of the appellate court as well as the trial court are set aside, with liberty to the Appellant to prosecute the suit as stated above. This shall be subject to payment of costs of Rs. 15,000/- to the Defendants, jointly, before the trial court at the next date of hearing, notice of which shall be issued by the trial court to the parties.