NABHIRAJ AND ORS.

v .

.TAYAVAT!BAI@ SHANTHA BAI AND ORS.

APRIL 15, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, J.1.]

Code of Civil Procedure, 1908 :

Order 1 Rule JO/Order 23 Rule 1-Suit for declaratory decree as regards C ownership of ce1tain lands~App/ication for impleading as party-No written statement filed despite repeated adjoumments-Specific stand taken by the palty that it had rese1ved its right to take approp1iate proceedings-Hence the other party could not proceed against the pa1ty in the suit--Pemiission granted by T1ial Cowt dismissing the suit against the palty impleaded-Not vitiated by any en'Or of law-Suit pending for years~Trial Cowt directed to dispose D it of expeditiously-Also directed that if anybody has filed or files any application for impleadment, the same should be dismissed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7561 of 1996.

E From the Judgment and Order dated 10.4.95 of the Karnataka High

Court in C.R. No. 2387 of 1994.

Uma Datta for the Appellants.

S.K. Kulkarani and Ms. Sangeeta Kumar for the Respondents.

The following Order of the Court was delivered :

Leave granted.

We have heard learned counsel on both sides.

The first respondent instituted a suit dated October 30, 1981 for a declaration to the effect that she is the absolute owner of the suit land admeasuring 6 acres and 25 gunthas situated at Raichur. Subsequently, the appellants got impleaded themselves as the respondents under Order 1, Rule 10, CPC. We are informed that in spite of repeated adjournments, H they did not file written statement and by an order of the Court they 338

NABHIRAI v. JA YAVATIBAI 339

forfeited their right. However, in paragraph 12 of the voluntarily filed A written statement, they have specifically stated that they "reserve their rights to recover their share of compensation amount illegally received by the first respondent (appellant) from the Court acquiring the land in Survey No. 686". They also sought dismissal of the suit. The contention now sought to be raised is that the order of the Court directing the first respondent to have the suit dismissed as against the appellants, would disentitle them from claiming any relief in the matter. We find no force in the contention. In this case, it is not the case of first respondent that she sought permission under Order 23, Rule 1, CPC to have the suit dismissed with liberty to file fresh suit. In the plaint itself, the respondent did not seek any relief against the appellants. The appellants got themselves impleaded as party defendants during the pendency of the suit. In view of the specific stand taken by the appellants that they reserved their right to take appropriate proceedings in the form open to them, the first respondent is

not prepared to proceed against the appellants in this suit. Under these circumstances, the permission granted by the Court dismissing the suit as D against the appellants cannot be stated to have been vitiated by any error of law.

The appeal is accordingly dismissed. It is stated that the suit is pending for years. The trial Court is directed to dispose of the suit expeditiously. If anybody has filed or files any application for impleadment, E it is directed to be dismissed. No costs.

G.N.

Appeal dismissed.