NINGAPPA BEERAPPA BENNEGOL Vs. SONABAI NINGAPPA BADIGER

JUDGEMENT

(1.) The petitioner who is plaintiff in the trial court has filed the above writ petition challenging the order dated 15.04.2014 passed on I.A.No.7, allowing his application in-part, permitting the petitioner to withdraw the suit and so far as permission to file fresh suit is rejected. Against the said order, the present writ petition is filed.

(2.) The plaintiff filed the suit for specific performance of an agreement in O.S.No.23/2007 to enforce the contract dated 16.2.2004 contending that, the defendant for want of money for her family necessities offered to alienate the suit schedule property. Accordingly, the plaintiff has agreed to purchase the same and entered into an agreement on 16.02.2004 for a sum of Rs.3 lakhs and plaintiff paid a sum of Rs.2,50,000/- to the defendant as advance amount on the date of agreement. The plaintiff was ready and willing to perform his part of contract but the defendant has postponed the execution of the sale deed on one way or the other ground. Therefore, the plaintiff was constrained to file suit for specific performance of the agreement in O.S.23/2007 before the Civil Judge (Sr.Dn), Chikkodi.

(3.) The defendant filed Written Statement and denied the entire transaction and plaint averments including the contract. After completion of evidence on both sides when the matter was posted for arguments at that stage, the plaintiff filed the application under Order-XXIII Rule 1 read with Section 151 of Code of Civil Procedure seeking permission to withdraw the suit with liberty to file fresh suit on the same cause of action. The said application was resisted by the defendant by filing objections. The trial court, after hearing both sides, passed the present impugned order, partly allowing the application only to withdraw the suit and the prayer for with liberty to file fresh suit is rejected. Aggrieved by the same, the plaintiff has filed the present writ petition.