LEELAMMA Vs. P ANITHA

JUDGEMENT

(1.) These petitions are heard to- gether as they arise out of a common order of the Court below.

(2.) The brief facts are as follows : THE petitioners in these two respective petitions, were defendants No.5 and No.6 in a suit for partition filed by respondent No. 1. THE petitioners and respondent No.5 herein, and one Prakash Reddy were the children of Chikkarama Reddy. Chikkarama Reddy had inherited ancestral properties, and on his death his children had succeeded to the properties. Prakash Reddy also having died, Respondents No. 1 to 4 are his heirs. THE parties are Hindus. Radhamma, respondent No.5 herein, who is the sister of these petitioners had filed a suit for partition in a suit bearing No.O.S.806/2000, before the Court of the City Civil Judge, Bangalore. On an interlocutory application for temporary injunction, restraining the defendants from cutting and removing standing timber on the suit properties, the order was granted. Anitha, one of the daughters of late Prakash Reddy had also filed a suit for partition against the same parties in respect of the same properties in a parallel suit in O.S.4287/2000, before the Court of the City Civil Judge, Bangalore. Ramprasad, the son of Prakash Reddy, being aggrieved by the order of injunction had preferred an appeal before this Court, on its appellate side,' in MFA 4940/2003. On 24.9.2003, the appeal was dismissed as withdrawn. Incidentally, it was stated by the counsel for the appellant and the counsel for Radhamma and Anita (THE petitioners though served with notice of the appeal had remained absent and were not represented in the appeal), that the main matter in the respective suits had been amicably settled -and each of them sought to file a memo to state that the above referred suits had been settled out of Court. This Court dismissed the appeal as withdrawn and directed the registry to transmit the record along with the memoranda to the trial Court to enable it to pass appropriate orders on the memoranda. THEreafter the trial Court, as on 5.11.2003, took note of the memorandum of the plaintiff and dismissed the suit in O.S.806/2000, as withdrawn. THE plaintiff in O.S.4287/2000, moved the trial Court seeking dismissal of her suit as having been settled out of Court, as on 27.9.2003. On the same day, the petitioners filed interlocutory applications, one under Order I, Rule 10(6) of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC, for brevity) and the other under Order 1, Rule 10(2), CPC, by each of the petitioners, respectively. Those applications having been rejected and the memorandum of the plaintiff having been accepted, the suit was dismissed as withdrawn, by a common order, the same is under challenge in these petitions. THE trial Court, in the impugned order has taken note of the observations and directions of this Court in the above referred appeal and before the memo of the plaintiff, that was sought to be filed by the plaintiff in O.S.4287/ 2000 in the appeal against an interim order passed in O.S.806/2000, could be received by the trial Court, the defendants had filed written statements and counter-claim much before filing the above applications on which the impugned order was passed. THE trial Court has opined that this Court had already recorded the intention of the plaintiffs in the respective suits to withdraw the same as settled out of Court and therefore, recording such withdrawal was only a formality. THE trial Court has further observed that the defendants who were also parties to the parallel suit not having raised any objection for the withdrawal of the same were estopped from doing so in the latter suit.

(3.) The learned counsel for respondent No. 3 places reliance on the following authorities, to contend that the writ petitions are not maintainable as the petitioners are provided with an alternative remedy of appeal :- 1. Bharathi Warehousing Corporation and another v. M/s. Shreeshyla Co-operative Industrial Estate Limited and others, 2009 1 AIRKarR 398. 2. Sadhana Lodha v. National Insurance Co. Limited and another, 2003 AIR(SC) 1561. 3. Vishnumoorthi Bhagwatha and another v. Rudra Shedthi and another,1973 2 MadLJ 395. 4. Revamma v. Sharanamma,1974 2 KerLJ 77. 5. S.Krishnama Naidu v. Managing Director of the National Co-operative Bank Limited, Bangalore, 1999 1 ALT 1.