MALAMMA Vs. HARIJANA GANGAPPA

JUDGEMENT

(1.) Petitioners have invoked writ jurisdiction Article 227 of the Constitution of India challenging order dated 04.04.2016 passed by the Civil Judge & JMFC, Siruguppa, on I.A. No.13 in O.S. No.109 of 2012.

(2.) Plaintiffs have filed this writ petition. Plaintiffs claiming to be in possession of suit schedule land by virtue of agreement of sale dated 27.04.1990 executed by defendants/respondents filed O.S. No.109 of 2012 for permanent injunction. Plaintiffs filed an application under Order XXVI Rule 10-A for appointment of Commissioner to examine the validity of thumb impression of the defendants. The said application came to be rejected on 05.02.2016. In the said order, it was observed that plaintiffs, without seeking the relief of specific performance of the contract, had filed the suit for a bare injunction. Thus, plaintiffs were compelled to file an application under Order XXIII Rule 1(3)(a) of CPC to permit the plaintiffs to withdraw the present suit however, reserving liberty to file a comprehensive suit for specific performance on the same cause of action. The Trial Court rejected the said application on the ground that the present application was filed at the fag end of the trial, and if the application was to be allowed, it may lead to fresh round of litigation among the parties. Taking exception to the same, this writ petition is filed.

(3.) Learned counsel for the petitioners would submit that the application under Order XXIII Rule 1(3) of CPC to withdraw the present suit and file fresh suit was filed by the plaintiffs on the ground that the present suit for bare injunction, without seeking the relief of specific performance of the contract, may not be maintainable. He submits that the Trial Court committed an error in rejecting the said application since Order XXIII Rule 1(3)(a) provides for allowing the plaintiff to withdraw the suit and file a fresh suit. Hence, he submits that the impugned order passed by the Trial Court may be set aside.