V NARAYANAPPA Vs. NARAYANAPPA

JUDGEMENT

(1.) The short question that arises for consideration in this revision petition is whether the court below was justified in granting permission to the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action.

(2.) The plaintiff filed O.S.No.425/64 on the file of the Munsiff, Chickballapur. The entire evidence in the suit was closed by 17-7-1967 and arguments were also heard in part on 24-7-67. At that stage, an application for amendment of the plaint was filed. That application was rejected and a revision petiton CRP.1623/67 was filed before this Court. This Court held that the order declining to grant the amendment was one within the jurisdiction of the court below and hence could not be interfered with. After the dismissal of the revision petition by this Court, the plaintiff filed I.A.10 under Order 23. Rule 1 read with Section 151 of the CPC. stating that regarding adoption, due to some mistake and inadvertence, the time, manner of adoption, custom and other details were not pleaded, that it was a defect in the plaint on account of which he was precluded from leading evidence and that therefore, liberty should be given to him to withdraw the suit. Defendant 1 resisted that application and submitted to the Court that the grant of permission at that stage to withdraw the suit should not be given, that the only desire of the plaintiff in withdrawing the suit was to harass the defendant and that, therefore, the application should be rejected.

(3.) The learned Munsiff was of the view that the ground upon which the withdrawal of the suit was sought was that there is a formal defect in the plaint and that formal defect consists in not specifically pleading all facts relating to the adoption of the plaintiff. He therefore, held as under: