CHIKKAMADAIAH Vs. NINGAMMA & ORS.

JUDGEMENT

(1.) The present writ petition is filed by the first plaintiff against the order dated 6-2-2016 dismissing I.A. No. VII, filed by the plaintiffs under Order 23, Rule 1 (3)(a) r/w. Sec. 151 of Code of Civil Procedure in O.S. No. 56/2014 on the file of the I Additional Civil Judge and JMFC., Malavalli.

(2.) The plaintiffs filed a suit in O.S. No. 56/2014 for partition and separate possession in the suit schedule properties contending that the suit schedule properties are joint family properties of the plaintiffs and defendant; plaintiffs and the defendant are the members of the joint family and there was no partition in the family, etc. The defendant filed her written statement denying the entire plaint averments and contended that no cause of action arose at the time of filing of the suit. She further contended that the suit for partition is not maintainable and some of the properties are not included in the plaint schedule and therefore suit is to be dismissed, etc.

(3.) When the matter was posted for evidence, at that stage, plaintiffs filed I.A. No. VII under Order 23, Rule 1 (3)(a) r/w. Sec. 151 of Civil Procedure Code to withdraw the suit with liberty to file a fresh suit contending that while the plaintiffs came to know some mistakes occurred while filing the suit and contended that all are in joint possession, the plaintiffs father and his elder brother did not get khatha in their names and same has not been stated in the plaint which is a formal defect occurred in the plaint, etc. Therefore, they want to withdraw the present suit with liberty to file a fresh suit.