ISHWAR Vs. IRAPPA

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 25-6-2015 passed by the Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Haveri, whereby the Civil Judge has dismissed the petitioner's application under Order 23, Rule 1 read with Section 151 of Civil Procedure Code, 1908 for withdrawing the civil suit for permanent injunction with permission to file a fresh suit thereafter.

(2.) The brief facts of the case are that the petitioner had filed a suit for permanent injunction against the respondent-Mr. Irappa, before the Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Haveri. Subsequently, during the proceedings, he filed an application under Order 6, Rule 17 for amending the plaint. According to the petitioner, in the plaint, the property in question was incorrectly mentioned as 1187/A, whereas the property is actually 1187/B. Therefore, a typographical error, which had crept in the plaint, needed to be corrected. However, by order dated 22-10-2013, the Trial Court dismissed the application for amendment.

(3.) Mr. Shivasai M. Patil, the learned Counsel for the petitioner, has pleaded that the learned Trial Court has been swayed by irrelevant considerations. Secondly since there is formal defect as a wrong property had been mentioned in the plaint, the suit is bound to fail. Even if the decree were passed in favour of the plaintiff qua property numbered as 1187/A, the said decree could not be implemented as the real concerned property is numbered as 1187/B. Therefore, even if the petitioner had pursued the civil suit, eventually, the suit would fail. Thirdly, under Order 23, Rule 3 of CPC, in case the Court is satisfied that a suit must fail by reason of some formal defect, it may grant the plaintiff a permission to withdraw such suit with liberty to institute a fresh suit on the same subject-matter. This particular provision has been ignored by the learned Civil Judge. Therefore, the impugned order deserves to be set aside.