HARINDRANATH K Vs. K N PREMAVATHY

JUDGEMENT

(1.) The petitioner, being the plaintiff in Civil Suit in O.S.No.26352/2017 for a decree of declaration and injunction in respect of the subject property, is invoking the Writ Jurisdiction of this Court for assailing the order dated 30.6.2018 made by the learned Principal City Civil Judge, Mayo Hall at Bengaluru, at Annexure-A whereby the petitioner's memo dated 25.6.2018 seeking deletion of the respondent-BDA which happens to be the 5th defendant in the said suit has been rejected. After service of notice the respondents having entered appearance through their counsel, resist the writ petition.

(2.) Shri S Sreevatsa, learned Senior Counsel appearing for the petitioner-plaintiff submits that although the suit is inter alia for a decree of declaration, no relief is claimed against the respondent-BDA; a prior notice to the BDA is a sine qua non for institution of suit against it vide Section 64 of the BDA Act, 1976; however presence of BDA as a defendant to the suit is unnecessary; therefore plaintiff's memo seeking deletion of 5th defendant-BDA from the array of parties could not have been rejected by the Court below.

(3.) Learned advocates appearing for the respondents vehemently opposed the writ petition contending that, the memo for deletion of BDA from the array of parties to the suit is not maintainable; for withdrawing of the suit partly qua properties are partly qua parties, Order XXIII Rule 3 of CPC, 1908 provides for a procedure which has not been invoked by the petitioner by filing the application; the whole suit having been structured with BDA as the jugular vein, it is impermissible for the petitioner-plaintiff to seek its deletion at all; if suit is bad for qua BDA for lack of statutory notice, it is bad qua all other defendants, since the structure of the suit is indivisible. The panel counsel for the BDA opposes the writ petition contending that some wild allegations are made against the BDA and to refute the same its presence as a defendant is necessary. So contending they seek dismissal of the writ petition.