Gerald Rebello v. Clement D Silva

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.2537/2021 (GM-CPC)

BETWEEN:

GERALD REBELLO S/O ANTHONY REBELLO AGED ABOUT 77 YEARS R/AT. GEM REIGN, NEAR CROWN OIL MILL NIDAMBALLI ROAD, KALLAINPUR MOODUTHONSE VILLAGE UDUPI TALUK & DISTRICT 576114. …PETITIONER (BY SRI. SACHIN B.S. ADV.,)

AND:

¶1CLEMENT D'SILVA AGED ABOUT 66 YEARS S/O FRANCIS XAVIER D'SILVA.

¶2FLOSSY FURTADO W/O CLEMENT D'SILVA AGED ABOUT 68 YEARS.

¶3RUBEAN D'SILVA S/O CLEMENT D'SILVA AGED ABOUT 52 YEARS.

¶4ROYAN D'SILVA S/O CLEMENT D'SILVA AGED ABOUT 47 YEARS.

by RUPA V Location: HIGH COURT OF KARNATAKA ((((((((((((HC-KAR, NC:(2026:KHC:43815( W.P.(No.2537/2021( ( ,,,,,,,,,, , CNR:(KAHC010052072021( ( ( RESPONDENT,NO.1,TO,4,ARE, R/AT,HOUSE,NO.1-15,,SILVA,GARDEN, BEHIND,RC,CHURCH, UDAYAVARA,POST, UDYAVARA, UDUPI,TALUK,&,DISTRICT,576114., ,

5., STANLEY,D'SILVA, D/O,FRANCIS,XAVIER, AGED,ABOUT,81,YEARS, R/AT,D'SILVA,,THALE,HITHLU, KEMMANU,POST, UDUPI,TALUK,AND,DISTRICT,576114., ,

6., HERALD,D'SOUZA, AGED,ABOUT,72,YEARS, S/O,FRANCIS,XAVIER,D'SILVA, R/AT,D'SILVA,GARDEN, DENDOORKATTE, MANIPURA,GRAMA,AND,POST, VIA,MOODABELLE, UDUP,TALUK,AND,DISTRICT,576114., …RESPONDENTS, , (R1,TO,R6,ARE,SERVED), , , THIS, W.P., IS, FILED, UNDER, ARTICLE, 227, OF, THE, CONSTITUTION,OF,INDIA,,PRAYING,TO,QUASH,THE,IMPUGNED, ORDER,DATED,08.01.2021,PASSED,IN,O.S.NO.96,OF,1999,ON, IA,NO.25,ON,THE,FILE,OF,ADDITIONAL,SENIOR,CIVIL,JUDGE, AND, ACJM, AT, UDUPI,, AS, PER, ANNEXURE-A, AND, CONSEQUENTLY,ALLOW,I.A.NO.25,AS,PRAYED,FOR,&,ETC., , , THIS,PETITION,,COMING,ON,FOR,PRELIMINARY,HEARING, IN, 'B', GROUP,, THIS, DAY,, ORDER, WAS, MADE, THEREIN, AS, UNDER:, , CORAM:(HON'BLE(MR.(JUSTICE(VIJAYKUMAR(A.(PATIL( , (

ORAL ORDER

This petition is filed seeking the following reliefs: "i. Issue writ of certiorari or any other appropriate writ or order to quash the impugned order dated 08.01.2021 passed in OS.No.96/1999 on IA.No.25 on the file of Additional Senor Civil Judge & ACJM at Udupi, as per ANNEXURE-A and consequently allow IA.No.25 as prayed for.

ii. Issue any other writ or order or direction that deems fit to grants in the circumstances of the case in the interest of justice and equity."

¶2The learned counsel for the petitioner has filed a memo for withdrawal of IA.No.25, which reads as under: "The undersigned counsel for the Petitioner herewith respectfully prays to withdraw the order impugned I.A.NO.25, with liberty to file fresh application, as the cause show in the order impugned application does not survive for consideration.

The Petitioner as on date is bed ridden and is in a vegetative state unable to prosecute the suit. In that view of the matter the Petitioner most respectfully prays that the Hon'ble Court be pleased to grant liberty in favour of the Petitioner to file fresh Application under the changed circumstances or to prosecute the suit by other means accordingly."

¶3It is to be noticed that the petitioner/plaintiff had filed an application seeking permission to withdraw the suit with liberty to institute a fresh suit, which came to be dismissed by the trial Court under the impugned order on the ground that there is no formal defect.

¶4The petitioner/plaintiff has now filed the memo to withdraw the said IA.No.25. The memo for withdrawal of an application would not arise as the said application was considered and dismissed by the trial Court under the impugned order.

¶5Learned counsel for the petitioner submits that if the petitioner is able to point out the formal defects in the suit and file fresh application, the same may be considered by the trial Court on its own merits, without being influenced by the earlier rejection of the application. In my considered view, it is open to the petitioner/plaintiff to file fresh application pointing out the formal defects in the suit and if such an application is filed, the trial Court

shall consider the same on merits dehors the earlier rejection. For the aforementioned reasons, the writ petition is disposed of reserving liberty to the petitioner to file a fresh application as sought for.

Sd/- (VIJAYKUMAR A. PATIL) JUDGE

ABK List No.: 1 Sl No.: 22