ANANDAPPA Vs. M C KITTUR

JUDGEMENT

(1.) The plaintiffs who are the respondents-1 to 22 filed a suit in O.S. No. 461/1975 in the Court of the IInd Additional Munsiff, Belgaum for permanent injunction restraining the defendants from digging the graves and tombs of the buried members of the Lingayat community. The said suit was filed in a representative capacity under Order 1, Rule 8(1) of Code of Civil Procedure and notice as contemplated under the said order was issued and some of the persons interested in the subject matter of the suit got themselves impleaded as the plaintiffs.

(2.) The plaintiffs filed a memo on 23-5-1982 stating that the suit was technically defective and be dismissed for non-prosecution. It is common ground that all the Advocates to each party had signed the memo praying for dismissal of the suit for non-prosecution. The learned Munsiff allowed the memo filed by the plaintiffs and dismissed the suit for non-prosecution. The petitioner who was not a party to the suit filed a Miscellaneous Application No.22/85 challenging the order passed by the learned IInd Additional Munsiff dismissing the suit for non-prosecution. The contention of the petitioner in the miscellaneous petition was that any suit that is to be withdrawn, notice must be issued as contemplated under Order 1, Rule 8(4) of C.P.C. This not having been done by the learned Munsiff, the order is without jurisdiction and the same is null and void. He also submitted that the suit is deemed to be pending. The learned Munsiff after considering various contentions raised by the petitioner held that even with regard to restoration of the suit, Art.122 of the schedule to the Limitation Act shall apply. Admittedly the suit was dismissed on 23-6-1982 and the petition before the learned Munsiff to restore the suit was made on 22-6-1985 i.e. beyond the statutory period of 30 days as per Art.122 of the Scheduled of the Limitation Act.

(3.) The learned Counsel for the respondents drew my attention to a Judgment reported in 1978 (2) Kar LJ 15 : (AIR 1978 Kant 113) (Manappa Manikappa Sheded v. Bhaskarappa A. Bhasamma) and submitted that when a suit is erroneously dismissed without complying with Order 23, Rule 1(5), C.P.C. it cannot be a bar for the plaintiffs for filing a fresh suit. This is not the issue before the court and this is a case where the learned Munsiff has permitted the withdrawal of the suit without complying with Order 23, Rule 1(5), C.P.C.