PARVATHAMMA Vs. KALAMMA

JUDGEMENT

(1.) THE 4th defendant in O. S. No. 16 of 1978 on the file of the Court of civil Judge at Tiptur (originally filed as O. S. No. 1 of 1975) is questioning the order passed by the First Appellate Court, wherein the Appellate court has permitted the plaintiff in the above suit to withdraw the above suit and dismissed the appeal as having become infructuous.

(2.) THE suit was one for partition and separate possession of the plaintiff 1/3rd share which was dismissed by the Trial Court. An appeal appears to have been preferred by the plaintiff against the dismissal of the suit and while appeal was pending, he, the plaintiff filed LA. No. 3 seeking permission to withdraw the suit with a liberty to file a fresh suit with regard to the same subject-matter. This application was allowed permitting the plaintiff/the 1st respondent herein to withdraw the suit with a liberty to file a fresh suit with regard to the same subject-matter. Questioning such order, the C. R. P. in C. R. P. No. 2101 of 1985 was filed before this Court and that C. R. P. was allowed setting aside the order and remanded the case for First Appellate Court with a direction to dispose of the case afresh by giving opportunities to both parties and to dispose of the same on merits. After remand on 24-6-1987 by this Court, the Additional District Judge, Tumkur, passed an order, wherein he has held that the earlier order passed on LA. No. 3 was set aside by the High court. Therefore, LA. No. 3 was to be disposed of afresh. Consequently, the said LA. No. 3 was taken up for fresh hearing. The Appellate Court has considered the affidavit filed by the son of the appellant that he be permitted to produce the additional documentary evidence including the application made by the respondent for making the katha in the name of the appellant. It was also alleged that in view of fresh documents filed, wherein, the appellant was shown as joint kathadar of the property, fresh opportunity has to be given to the respondent in the appeal and it requires further evidence, the permission to file fresh suit in the matter asked for.

(3.) 4th respondent therein, the 2nd defendant (3rd respondent herein) objected to such withdrawal on the ground that there is no formal defect or any sufficient grounds are made out for granting such a prayer. The learned Judge, taking into consideration the provisions of Section 107 (2)of the CPC and also Order 23, Rule 1 of the CPC held that the application is maintainable. The learned Appellate Judge considered the decisions in B. H. Radhakrishna v Guruvanna, Ammini Kutty and Others v george Abraham, Suraj Pal Singh v Gharam Singh and Others and masood Sab v Doddanna and Others and allowed the said application. It is this order that is challenged in the above civil revision petition.