MUDDIAH Vs. CHOWDAIAH

JUDGEMENT

(1.) THIS Revision Petition is preferred against the order passed on i. A. 12 in O. S. 184/94 passed by the Prl. Civil Judge (Jr. Dn.)Madhugiri dated 3. 12. 1998. It appears that the petitioner was the plaintiff in the suit and he filed an application under order 23 Rule 1 (3) seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action in respect of the same subject matter.

(2.) IT was alleged that the suit property has been acquired through a sale deed from the defendant and a pale of adverse possession also taken. It is also averred by the plaintiff that the defendant has taken up the contention that the had retained some portion of the suit property sold to the plaintiff and the concerned Gram Panchayath is also a necessary party as the plaintiff felt that the amendment is to include the Gram Panchayath or to make the plaint amended to cure the defect pointed out would cause delay and complication and therefore the application came to be filed.

(3.) IN the objection filed by the defendant, it was claimed that as per the sale deed dated 20. 1. 1982 (wrongly typed as 1992 in the order copy), the plaintiff is entitled to enjoy the portion purchased by him and not the portion retained by the defendant. It is also alleged that the formal defect can be cured by way of amendment and impleading the parties. On the basis of the respective contentions, the trial Court has chosen to reject the application holding that the points pleaded by the plaintiff cannot be termed as technical or formal defect. Therefore, no permission could be granted.