- 1 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 23RD DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.I.ARUN WRIT PETITION NO. 106044 OF 2018 (GM-CPC) BETWEEN: BYALALU SANNAPPA S/O. BYALAL ROKKAPPA, AGED: 59 YEARS, OCC: AGRICULTURE, R/O: 16/32 WARD, TALWARKERI AREA, HOSAPETE, DIST: BALLARI. … PETITIONER (BY SRI. VISHWANATH HEGDE, ADVOCATE) AND: 1. B. ABDUL GAFFUR SAB S/O. ABDUL NABI SAB, SINCE DECEASED BY HIS LR’S 1A. SMT. SHEKANABI W/O. B. ABDUL GAFFUR SAB, AGED 73 YEARS, OCC: HOUSEHOLD, R/O: HOUSE NO. 583, BANAKAR ONI MASZID, I.S.R. ROAD, CHITTAWATGI, HOSAPETE, DIST: BALLARI – 583 273. 1B. ABDUL LATIF S/O. B. ABDUL GAFFUR SAB, AGED 45 YEARS, OCC: AGRICULTURE, R/O: HOUSE NO.583, BANAKAR ONI MASZID, I.S.R. ROAD, CHITTAWATGI, HOSAPETE, DIST: BALLARI – 583 273. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 1C. SHAKEEL AHAMAD S/O B. ABDUL GAFFUR SAB, AGED 40 YEARS, OCC: AGRICULTURE, I.S.R. ROAD, CHITTWADGI HOSAPETE, DIST: BALLARI – 583 273. 1D. SHABREEN B W/O. MOHAMMAD RAFIQ, AGED 46 YEARS, OCC: HOUSEHOLD, R/O: HOUSE NO.583, BANAKAR ONI MASZID, I.S.R. ROAD, CHITTAWADGI, HOSAPETE, DIST: BALLARI – 583 273. 2. DAVANAGERE MABU SAB S/O. LATE HUSSAIN SAB, AGED: 55 YEARS, OCC: AGRICULTURIST, C/O: DAVANEGERE HUSSIN SAB, NEAR PINJAR MASJID, 1ST WARD, CHITTAWADIGI, HOSAPETE, DIST: BALLARI. … RESPONDENTS (BY SRI. K.S. PATIL, ADV. FOR R1 (A TO D); NOTICE ISSUED TO R2 IS SERVED BUT UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI QUASHING THE ORDER DATED 27.08.2018 ON IA NO.III IN R.A.NO.5022/2015 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE BALLARI, SITTING AT HOSAPETE MARKED AT ANNEXURE-A. CONSEQUENTLY, THE INTERIM APPLICATION NO. III FILED UNDER ORDER XXIII RULE 1 (3) OF C.P.C. FILED BY PLAINTIFF/1ST RESPONDENT IN R.A.NO.5022/2015 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE BALLARI, SITTING AT HOSAPETE BE REJECTED AND ETC., THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING B GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE M.I.ARUN) 1. Respondent No.1 / plaintiff filed a suit in O.S. No.330 of 2009 with the following reliefs: “XII. It is, therefore, prayed that the Honorable Court be pleased to pass the Decree in favour of the plaintiff and against the Defendants:- (a) declaring he title of plaintiff to the Land described in the schedule hereunder: (b) Consequently granting permanent Injunction restraining the Defendants, their agents, relations or anybody through them from trespassing or dispossessing the plaintiff from the suit schedule land: (c) for costs of the suit; -and- (d) for such other relief or reliefs as the honorable Court deems fit and proper in the circumstances of the case.” 2. The petitioner / defendant No.2 and respondent No.2 / defendant No.1 filed written statements denying the title of the plaintiff to the suit schedule property. Defendant No.1 claimed to be the owner of the suit schedule property and contented that he had subsequently sold the suit schedule property in favour of defendant No.2. - 4 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 3. The trial Court based on the pleadings, framed the following issues: “1. Does plaintiff proves that, suit schedule property is ancestral property? 2. Does plaintiff proves that, he has succeeded the suit schedule property through the ancestors/or partition? 3. Does the plaintiff proves that he is the absolute owner of the suit schedule property? 4. Does the plaintiff proves that he is in the peaceful possession and enjoyment of the suit schedule property as on the date of the suit? 5. Does the plaintiff proves that, the defendant No.1 colluding with the revenue authority got mutated the suit schedule property in his name without passing of the title as per law? 6. Does the defendant No.1 proves that, the change of khata in his name was legal one? 7. Does defendants prove that, suit of the plaintiff is time barred one? 8. Does the plaintiff is entitled for the relief of declaration of his title over the suit schedule properly? 9. Does plaintiff is entitled for the relief of Permanent Injunction? 10. What order or decree?” and issues were answered as follows: “Issue No.1: In the Negative. Issue No.2: In the Negative. Issue No.3: In the Negative. - 5 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 Issue No.4: In the Negative. Issue No.5: In the Negative. Issue No.6: In the Negative. Issue No.7: In the Affirmative. Issue No.8: in the Negative. Issue No.9: in the Negative. Issue No.10: As per final order” 4. The trial Court held that both the plaintiff and defendant No.1 failed to prove their ownership over the suit schedule property concerned. However, the suit was dismissed on the ground that it was barred by limitation. 5. Aggrieved by the same, the plaintiff preferred R.A. No.5022 of 2015. In the course of the proceedings, the plaintiff / appellant filed an application under Order XXIII Rule 1(3) before the First Appellate Court, praying that the original suit be dismissed as withdrawn with liberty to institute a fresh suit on the same cause of action. The grounds urged in support of the said contentions are that the plaintiff, being the owner of the suit schedule property, had mortgaged the same in favour of defendant No.1. However, due to ignorance of law, instead of filing a suit for redemption of mortgage, he filed a suit for - 6 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 declaration and injunction. It was contended that it was not possible to carry out the necessary amendments in the plaint and that it is advisable to institute a fresh suit for redemption of mortgage. 6. The First Appellate Court agreed with the contentions of the plaintiff / appellant, allowed the application, and passed the following order: “I.A.No. III is allowed. The plaintiff-appellant is permitted to withdraw the suit in O.S.No.330/2009 with a liberty to file a fresh suit on same cause of action. Regular Appeal in R.A.No.5022/2015 is disposed off accordingly. Under the facts and circumstances of the case, parties are directed to bear their own cost. Return the lower Court records to the trial Court along with copy of this order.” 7. Aggrieved by the same, the present writ petition is filed. 8. The case of the petitioner is that the original plaintiff has admitted that the suit for declaration and injunction was a mistake and ought not have been filed. However, the impugned order has the effect of permitting the original plaintiff / - 7 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 respondent No.1 to institute a fresh suit on the same cause of action for declaration and injunction, which is impermissible. It is further submitted that the petitioner has no objection if respondent No.1 is permitted to file a suit for redemption of mortgage in accordance with law. However, respondent No.1 is not agreeable for the same. He justifies the impugned order and prays for dismissal of the writ petition. It is contented that the defect in the original suit is a formal defect and, therefore, the impugned order is just and fair. It is further submitted that the impugned order is in line to make a real inquiry as to the ownership and secure the interest of justice. 9. The question that arises for consideration in the instant writ petition is whether the trial Court was correct in permitting the plaintiff / appellant to withdraw the original suit while reserving liberty to institute a fresh suit on the same cause of action? 10. A suit can be permitted to be withdrawn with liberty to institute a fresh suit on the same cause of action only when the defect pointed out in the plaint is a formal defect and not a - 8 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 substantial one. Such permission cannot be granted to enable the plaintiff to fill up the gap and cover up the laches. 11. In the instant case, the suit was been filed for declaration and injunction, and the cause of action pleaded in the plaint pertains to the said relief. Now it is the case of the plaintiff / respondent No.1 herein that he never had a cause of action to file a suit for declaration and injunction, but had a cause of action to file a suit for redemption of mortgage. The liberty granted by the trial Court has the effect of permitting the plaintiff / respondent No.1 herein to once again file a suit for declaration and injunction, which is impermissible. Hence, the following: ORDER (i) The writ petition is hereby allowed. (ii) The suit in O.S. No.330 of 2009 on the file of the Prl. Senior Civil Judge & JMFC, Hospet stands dismissed as withdrawn, without reserving the liberty to the plaintiff / respondent No.1 herein to institute a fresh suit on the same cause of action. (iii) However, it is clarified that the liberty is always available to the plaintiff / respondent No.1 to institute a fresh suit in respect of the same suit - 9 - HC-KAR NC: 2026:KHC-D:851 WP No. 106044 of 2018 schedule property on some other cause of action, in accordance with law. (iv) The liberty granted to the appellant / respondent No.1 herein in I.A. No.III in R.A. No. 5022 of 2015 to institute a fresh suit on the same cause of action is hereby set aside. (v) R.A. No.5022 of 2015 on the file of III Addl. District & Sessions Judge, Ballari (Sitting at Hosapete) also stands dismissed. Sd/- (M.I.ARUN) JUDGE VNP / CT: ASC List No.: 1 Sl No.: 1