SIDDARAMAPPA Vs. PECKVA NAIKA & ANOTHER

JUDGEMENT

(1.) This is a plaintiffs revision under Sec. 115 C.P.C. directed against the order passed in I.A. No. 20 in Original Suit No. 54/1982 on the file of the Munsiff at Hosadurga.

(2.) I.A. No. 20 is an application filed under Order 23 Rule l(3)(b) of C.P.C. to withdraw the suit with liberty to present a fresh suit with the same cause of action at a later date. Apparently the defendants have contested the title of the petitioner. In support of I A. No. 20 the plaintiff himself has filed an affidavit stating that there is material defect in the suit with regard to his title and the suit is likely to fail and it cannot be cured by amending the plaint and it can only be rectified through the Revenue authorities. That averment amounts to a prayer for dismissal of the suit on the ground that he does not have proper title to the suit property. Such a statement cannot be said to be a formal defect in the pleading or in the suit. It is practically dismissing the suit itself. Added to that, the assertion that there is the defective title that can be cured only by the revenue authorities and not by the Civil Court. In other words, that Civil Court is not competent to pass any decree declaring his title in view of the defect which he admits. In such cases, all that the Court can do is to dismiss the application and proceed to dispose of the suit on merit. The trial Court has also mentioned that in the light of the defence set up by the defendants the question of limitation is also there and any permission to re-present the suit should not enable the plaintiff to bring a fresh suit which would otherwise be barred by limitation. These two conclusions arrived at by the Lower Court, which I think rightly, does not call for interference.

(3.) Petition is therefore rejected. Petition rejected.