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2020 DIGILAW 2229 (KAR)

B. Jayanthi v. Jayaprakash Madhiraju

2020-11-10

R.DEVDAS

body2020
JUDGMENT R. Devdas, J. - This writ petition was filed on 06.02.2020 seeking the following reliefs: a) Issue a Writ of Certiorari or order or direction, in the nature of a writ, quashing the impugned Order dated 26/07/2017 and also that of the Order dated 30/08/2017 passed by the learned Single Judge of this Hon ble Court in W.P.No.47441-47442/2016 (LB-BMP) vide Annexure-T & T1 respectively to the Writ Petition; b) Issue a writ of Mandamus, directing the respondents No.3 and 4-Bangalore Development Authority not to include the land bearing Sy.No.34/1, measuring 1 acre 08 guntas, situated at Nagavara Village, Kasaba Hobli, Bengaluru North Taluk, in the proposed approved Layout plan, in the interest of justice and equity; c) Issue a Writ of Mandamus, directing the 2nd respondent-Bruhat Bengaluru Mahanagara Palike to cancel the sanctioned plan and license, if already issued in favour of 1st respondent, by virtue of the Order dated 26.07.2017 and 30.08.2017 in W.P.No.47441-47442/2016 passed by the learned Single Judge of this Hon ble Court, produced at Annexure-T & T1 respectively; d) Pass such other orders, as the petitioners are entitled to in the facts and circumstances of the case, including the costs of the proceedings in the interest of justice and equity. 2. However an application in I.A.No.2/2020 has been made seeking amendment of prayer (a) as follows: Review the orders dated 26/07/2017 and 30/08/17 passed by this Hon ble Court in W.P.No.47441-47442/2016 (LB-BMP) vide Annexures T & T1 respectively by recalling/ setting aside the same in the interest of justice. 3. By order dated 24.08.2020 notice to the respondents was ordered. Learned Counsel Smt.Vaishali Hegde, has entered appearance for contesting respondent No.1. Though respondents No.2 to 4 are served, they have remained unrepresented. Learned Senior Counsel Sri K.N.Phanindra, appearing for respondent No.1 vehemently submitted that this writ petition is an abuse of the process of this Court. It was brought to the notice of this Court that W.P.No.22881/2019 was filed by the very same petitioners with the very same prayers. However, soon after respondent No.1 herein filed an impleading application bringing the true facts to the notice of this Court, the petitioners withdrew the writ petition. It is submitted that the petitioners are guilty of suppression of material facts and of not approaching this Court with clean hands. Consequently, the learned Counsels were asked and they have submitted their arguments regarding maintainability of the writ petition. It is submitted that the petitioners are guilty of suppression of material facts and of not approaching this Court with clean hands. Consequently, the learned Counsels were asked and they have submitted their arguments regarding maintainability of the writ petition. 4. In order to understand the background in which the question of maintainability of the writ petition was raised a brief narration is required. The State Government issued final notification on 21.02.1986 under Section 6(1) of the Land Acquisition Act, (hereinafter referred to as the L.A. Act for short) acquiring an extent of about 164 acres of land comprised in various survey numbers in Nagavara Village, Bangalore North Taluk, including an extent of 1 acre 08 guntas in Sy.No.34/1 which is the land in dispute in this writ petition, moreso two sites bearing No.411 and 416 said to have been carved out of Sy.No.34/1. It was also brought to the notice of this Court that on the same day i.e., 21.02.1986 another notification acquiring lands in Devarachikkanahalli, Kodichikkanahalli and other Villages were also notified. On a challenge raised, the entire acquisition of lands with respect to Devarachikkanahalli, Kodichikkanahalli and other Villages were set aside by this Court. The same was confirmed by the Apex Court by a judgment dated 21.02.1995 in the case of Vyalikaval House Building Co-operative Society Ltd., Vs. Narayana Reddy and Others, (1995) 3 SCC 128 . Since certain other bits of land in Nagavara Village, measuring about 52 acres 17 guntas were either denotified or acquisition being set aside, the beneficiary Vyalikaval House Building Cooperative Society approached the State Government with a request to acquire the said extent of 52 acres 17 guntas in Nagavara Village. But under a mistaken notion, the State Government issued a notification dated 28.07.1999 under Section 4(1) of the L.A. Act, proposing to acquire the said extent of 52 acres 17 guntas comprised in various survey numbers in Nagavara Village, including 1 acre 8 guntas in Sy.No.34/1. However, by a notification dated 04.06.2001 the preliminary notification dated 28.07.1999 was cancelled. 5. The beneficiary-Society challenged the cancellation of the preliminary notification in W.P.No.27205/2001. During the pendency of W.P.No.27205/2001, the land owners of Sy.No.34/1, sold the entire extent of 1 acre 8 guntas in Sy.No.34/1 in favour of one Sri Kariyappa, S/o Chikkanna, by way of two registered sale deeds dated 20.05.2003. 5. The beneficiary-Society challenged the cancellation of the preliminary notification in W.P.No.27205/2001. During the pendency of W.P.No.27205/2001, the land owners of Sy.No.34/1, sold the entire extent of 1 acre 8 guntas in Sy.No.34/1 in favour of one Sri Kariyappa, S/o Chikkanna, by way of two registered sale deeds dated 20.05.2003. In the meanwhile, the Bangalore Development Authority ( BDA for short) had passed a resolution dated 12.09.2003 approving the layout plan submitted by Vyalikaval House Building Cooperative Society with respect to 98 acres 21 guntas in Nagavara Village, including Sy.No.34/1. 6. The Society allotted and sold site bearing No.411 in favour of Sri C.Gurunath, under a registered sale deed dated 01.01.2004 and Site No.416 in favour of Smt.M.Prema Lakshmi, under a registered sale deed dated 05.04.2004. It is submitted that possession certificates were also given to the allottees and they were put in possession. By order dated 09.03.2004, this Court allowed W.P.No.27205/2001, quashed the Government Order dated 04.06.2001 and directed the State Government to proceed with the acquisition proceedings in terms of the notification dated 28.07.1999. 7. The said order dated 09.03.2004 was taken up in an intra-Court appeal, but the order of the learned Single Judge was upheld by the Division Bench. Being aggrieved, some of the land owners i.e., Sri B. Anjanappa and others filed a Special Leave Petition before the Apex Court, which was numbered as C.A.Nos.1930-32/2012. In the meanwhile, respondent No.1 herein purchased site bearing No.411 through a registered sale deed dated 14.05.2007 from Smt.Santhi Yerramsetti, who had in turn purchased the same from Sri C.Gurunath. Consequent thereto, the Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as BBMP for short) transferred the khata in favour of the first respondent. By another sale deed dated 27.08.2007, respondent No.1 herein purchased site No.416 and got the khata transferred in his name. 8. It is contended at the hands of respondent No.1 that the Land Acquisition Officer, under a mistaken notion that acquisition of Sy.No.34/1 had been set aside by this Court, issued the Subhadra patra (custody/possession letter) dated 25.03.2009, in favour of the original landlady, Smt.Venkatamma. However, realizing the said mistake, the possession letter dated 25.03.2009 was cancelled by a Government order dated 24.04.2010 and 16.04.2010, passed by the State Government. Being aggrieved by the cancellation of the possession letter, Smt.Venkatamma and others filed W.P.Nos.8403-8423/2011. However, the said writ petition was dismissed as withdrawn, by order dated 25.08.2011. However, realizing the said mistake, the possession letter dated 25.03.2009 was cancelled by a Government order dated 24.04.2010 and 16.04.2010, passed by the State Government. Being aggrieved by the cancellation of the possession letter, Smt.Venkatamma and others filed W.P.Nos.8403-8423/2011. However, the said writ petition was dismissed as withdrawn, by order dated 25.08.2011. 9. Notwithstanding the cancellation of the possession letter and the withdrawal of the writ petitions, Smt.Venkatamma proceeded to register a gift deed dated 01.10.2011, purporting to gift an extent of 1 acre 08 guntas in Sy.No.34/1 in favour of her granddaughter Smt.Munirathnamma. The learned Senior Counsel submits that Smt.Venkatamma had in fact sold the said lands in favour of Sri Kariyappa by a registered sale deed dated 20.05.2003. Therefore, it is submitted that the said gift deed is of no consequence. It is further submitted that the petitioners herein are claiming that they have acquired title over Sy.No.34/1 having acquired the same from Smt.Munirathnamma. 10. In the meanwhile, the Hon ble Supreme Court which was dealing with C.A.Nos.1930-32/2012 where the subsequent notification dated 28.07.1999 issued under Section 4(1) of the L.A.Act was the subject matter, passed a judgment dated 07.02.2012, holding that the said notification is bad in law and specifically directed that if Vykalikaval House building Co-Operative Society was in possession of any portion of the acquired land, then the same shall be returned to the land owner. Compliance report was also directed to be filed before the Apex Court. The said judgment is reported in the case of B.Anjanappa and Others Vs. Vyalikaval House Building Co-operative Society Ltd & Others, (2012) 10 SCC 184 . However, subsequently by another order dated 24.04.2014, the Hon ble Supreme Court clarified that in the above reported judgment, the Hon ble Supreme Court confined the dispute to 52 acres and 17 guntas only, placing reliance on the State Government proceedings dated July 2012. In the meanwhile, since Smt.Venkatamma and others tried to interfere with respect to the possession of the two sites in question, respondent No.1 herein filed O.S.No.6827/2013 on 17.09.2013 before the City Civil Court at Bengaluru, seeking a prayer for permanent injunction to restrain the defendants. 11. The learned Senior Counsel for respondent No.1 submits that the BDA, passed a resolution following the decision of the Apex Court, revoking the approval of layout plan which was earlier granted on 12.09.2003. 11. The learned Senior Counsel for respondent No.1 submits that the BDA, passed a resolution following the decision of the Apex Court, revoking the approval of layout plan which was earlier granted on 12.09.2003. Some of the allottees filed W.P.No.27725/2013 and connected matters challenging the resolution dated 16.05.2012 passed by the BDA revoking the layout plan. This Court by order dated 25.09.2014 set aside the resolution dated 16.05.2012, reserving liberty to the BDA to reconsider the matter afresh on merits in accordance with law after giving an opportunity of being heard to the petitioners therein as well as the Society. 12. In the meanwhile, respondent No.1 herein had submitted a building plan seeking approval for putting up construction on the sites in question, before the BBMP. Since an endorsement dated 29.06.2016 was issued by the BBMP declining to sanction the plan, the first respondent filed W.P.Nos.47441-47442/2016. It is submitted that the pendency of O.S.No.6827/2013 which was filed by the first respondent was also brought to the notice of this Court. It is submitted that Smt.Munirathnamma and others executed two registered sale deeds dated 07.07.2017 in favour of the petitioners. Learned Senior Counsel submits that the sale deeds are registered in favour of the petitioners herein, during the pendency of O.S.No.6827/2013. 13. It is submitted that by order dated 26.07.2017, this Court, in W.P.Nos.47441-47442/2016 held that the three Government authorities which are public bodies i.e., the Bangalore Development Authority, Bruhat Bengaluru Mahanagara Palike and the Special Land Acquisition Officer, were required to act in tandem and clarify the situation about the correct status of the land and layout in question. The concerned Officers of all the three public authorities were directed to file affidavits as to the correct status of the land and approval of the layout plan which was actually directed to be enquired into by order dated 25.09.2014 in W.P.No.27725/2013. On going through the affidavits, this Court held that the three public authorities have acted in an absolutely disjointed manner and there was absolute lack of co-ordination in the working of the three public authorities. It was noticed that the delay has occurred in complying with the orders dated 25.09.2014 and consequent approval of the building plan on the pretext that report is awaited from one another. It was noticed that the delay has occurred in complying with the orders dated 25.09.2014 and consequent approval of the building plan on the pretext that report is awaited from one another. Consequently on the basis of the affidavits submitted by the three authorities, the BBMP was directed to consider the case of the petitioner for sanction of plan within a period of one month from the date of the order. Thereafter the building plans submitted by the first respondent was approved by BBMP on 23.08.2017. Consequently W.P.Nos.47441-47442/2016 was disposed of by order dated 30.08.2017. 14. In the meanwhile, the death of Smt.Venkatamma was reported on a memo dated 14.06.2017 in O.S.No.6827/2013 and therefore the said suit was withdrawn on 31.07.2017, reserving liberty to file a fresh suit on a fresh cause of action. Thereafter first respondent herein filed O.S.No.5967/2017 seeking declaration of title and for consequential reliefs with respect to sites No.411 and 416, against Smt.Munirathnamma. Since the trial court did not grant an order of temporary injunction, the first respondent herein filed MFA No.2433/2018 and this Court by order dated 23.04.2018, granted an order of temporary injunction restraining Smt.Munirathnamma and all persons claiming through her from interfering with the peaceful possession of the two sites in question. Subsequently, on coming to know of the execution of the sale deeds by Smt.Munirathnamma in favour of the petitioners herein, an impleading application was filed by respondent No.1 herein in O.S.No.5967/2017, for impleadment of the petitioners herein. Learned Senior Counsel submits that written statements have been filed on behalf of defendant Nos.2 and 3 (petitioners herein) and a memo is also filed with a prayer to treat the written statement as objections to I.A.Nos.IV and V in O.S.No.5967/2017. 15. Learned Senior Counsel submits that these petitioners had filed W.P.No.22881/2019, without impleading respondent No.1 herein, but seeking a writ of mandamus to direct the authorities of BBMP to consider the representation dated 10.05.2019 said to have been given by the petitioners seeking cancellation of the khata, plan and license issued with respect to several sites formed in Sy.No.34/1 measuring 1 acre 08 guntas, which included sites No.411 and 416. It is submitted that when the first respondent herein got a whiff of the prayer made in the writ petition, he filed an impleading application on 22.07.2019. It is submitted that when the first respondent herein got a whiff of the prayer made in the writ petition, he filed an impleading application on 22.07.2019. It is submitted that the complete details of the background of the case was given by the first respondent along with the impleading application. It is submitted that consequent to the impleading application being filed by the first respondent herein, the petitioners filed a memo on 26.07.2019, seeking to withdraw the writ petition. It is submitted that the petitioners herein have simply stated that the vendor of the impleading applicant by name Kariyappa had filed a suit in O.S.No.6600/2018 before the City Civil Court at Bengaluru seeking a relief of declaration against the petitioners and therefore, leave was sought to withdraw the writ petition with liberty to prosecute the said suit. It is further submitted that this Court by order dated 26.07.2019 observed that a strange prayer is made seeking liberty to prosecute the said suit. Nevertheless, while noticing the averments made in the impleading application, the writ petition was dismissed as withdrawn without granting any liberty. 16. Learned Senior Counsel Sri K.N.Phanindra, submits that liberty was neither sought nor granted by this Court while withdrawing the earlier writ petition to file another writ petition on the very same cause of action. Hence this writ petition cannot be entertained in view of the bar provided under sub-rule (4) of Rule 1 of Order XXIII of CPC. It is further submitted that the petitioners have abused the process of this Court; they have not approached this Court with clean hands; they have not disclosed the true facts, including the filing of W.P.No.22881/2019, which was filed with the very same prayers as made in this writ petition. Reliance is placed on a decision of the Apex Court in the case of Kishore Samrite Vs. State of Uttar Pradesh and Others, (2013) 2 SCC 398 , to buttress the argument that when true facts are not disclosed, when there is suppression or concealment of material facts, it is impermissible to a litigant or even as a technique of advocacy, to permit entertainment or indulgence at the hands of this Court. 17. State of Uttar Pradesh and Others, (2013) 2 SCC 398 , to buttress the argument that when true facts are not disclosed, when there is suppression or concealment of material facts, it is impermissible to a litigant or even as a technique of advocacy, to permit entertainment or indulgence at the hands of this Court. 17. Per contra, learned Counsel Sri D.R.Ravishankar, appearing for the petitioners would submit that even if it is true that the factual aspects of the petitioners having filed an earlier writ petition in W.P.Nos.22881/2019 and 28504/2019 was not brought to the notice of this Court, such nondisclosure does not amount to material suppression as even if the same had been disclosed it would not affect the merits of the matter, as the facts narrated in the earlier writ petition would not affect the merits of the consideration of the instant writ petition and the cause of action is also entirely different. 18. While drawing the attention of this Court to the prayer made in the instant writ petition it was submitted that the petitioners have sought for a review of the order dated 26.07.2017 and 30.08.2017 passed by this Court in W.P.No.47441-474421/2016; a mandamus is sought in directing respondents No.3 and 4-Bangalore Development Authority not to include the land bearing Sy.No.34/1, measuring 1 acre 08 guntas in the proposed approved layout plan; and a mandamus directing the second respondent- BBMP to cancel the sanctioned plan and licence, if already issued in favour of the first respondent, by virtue of the directions issued by this Court in W.P.Nos.47441- 47442/2016. On the other hand, it is submitted that the prayer made in the earlier writ petition in W.P.Nos.22881/2019 and 28504/2019 is to consider the representation dated 10.05.2019; to direct the Commissioner, BBMP to cancel the khata, plan and licence sanctioned in respect of various sites formed in Sy.No.34/1 measuring 1 acre 08 guntas, including sites bearing No.411 and 416 and to further prevent illegal construction upon sites bearing No.411 and 416. It is therefore the contention of the petitioners that since the prayers made in the two writ petitions are not one and the same and the cause of action is different, therefore, the instant writ petition is maintainable. 19. The learned Counsel for the petitioners has relied upon an unreported judgment of this Court in the case of P.Rajeshwari Vs. It is therefore the contention of the petitioners that since the prayers made in the two writ petitions are not one and the same and the cause of action is different, therefore, the instant writ petition is maintainable. 19. The learned Counsel for the petitioners has relied upon an unreported judgment of this Court in the case of P.Rajeshwari Vs. Srinivasa and Others in C.R.P.No.483/2013 to contend that if an earlier proceedings is withdrawn, it will not prevent the presentation of a fresh petition even in respect of the same property/subject matter on a different cause of action. 20. Reliance is placed upon S.J.S.Business Enterprises (P) Ltd. Vs. State of Bihar, (2004) AIR SC 2421 to buttress the argument that the fact suppressed must be material in the sense that if it had not been suppressed, it would have a direct effect on the merits of the case. It must be a matter which was material for consideration of the Court, whatever view the Court may have taken. Reliance was also placed on Pulavarthi Ventaka Subba Rao Vs. Valluri Jagannadha Rao, (1967) AIR SC 591 to contend that where a case is withdrawn, it is not heard and decided and therefore Section 11 of the Code of Civil Procedure is inapplicable. 21. In order to ascertain the factual position and the details of the averments and prayer made in W.P.Nos.22881 and 28504/2019, this Court called for and obtained the writ papers pertaining to those writ petitions and perused the same. 22. Heard the learned Counsel Sri D.R.Ravishankar for the petitioners, Sri K.N.Phanindra, learned Senior Counsel for respondent No.1 on the maintainability of the writ petition and perused the petition papers. 23. Before dwelling upon the legal contentions, certain factual aspects are required to be noticed. Admittedly, the petitioners claim to have acquired title over 1 acre 08 guntas of Sy.No.34/1, by virtue of two registered sale deeds dated 07.07.2017. The Bangalore Development Authority had passed a resolution dated 12.09.2003 approving the layout plan in favour of Vyalikaval House Building Co-operative Society with respect to 98 acres 21 guntas, including 1 acre 08 guntas of Sy.No.34/1. Site No.411 was allotted in favour of Sri C.Gurunath and registered sale deed was executed in his favour by the Society, on 01.01.2004. Similarly site No.416 was allotted in favour of Smt.M.Prema Lakshmi and registered sale deed was executed on 05.04.2004. Site No.411 was allotted in favour of Sri C.Gurunath and registered sale deed was executed in his favour by the Society, on 01.01.2004. Similarly site No.416 was allotted in favour of Smt.M.Prema Lakshmi and registered sale deed was executed on 05.04.2004. Respondent No.1 purchased the two sites under registered sale deeds dated 14.05.2007 and 27.08.2007. Thereafter, the Land Acquisition Officer had redelivered possession of 1 acre 08 guntas in Sy.No.34/1, by issuing a possession letter dated 25.03.2009, to Smt.Venkatamma (the original landlady). However, the said possession letter was cancelled by the Government, by order dated 16.04.2010 and 24.04.2010. Smt.Venkatamma filed W.P.Nos.8403- 8423/2011 questioning the cancellation of possession letter. However, the said writ petitions were withdrawn on 25.08.2011. It is relevant to notice that Smt.Venkatamma had in fact sold the entire extent of 1 acre 08 guntas in Sy.No.34/1 in favour of Sri Kariyappa S/o Chikkanna by way of two registered sale deeds dated 20.05.2003. Notwithstanding the same, Smt.Venkatamma purportedly gifted the property already sold, by executing a gift deed dated 01.10.2011, in favour of her granddaughter Smt.Munirathnamma, through whom the petitioners acquired title. 24. The first respondent had filed O.S.No.6827/2013 against Smt.Venkatamma and Others seeking a decree of permanent injunction for restraining them from interfering with the peaceful possession of the two sites. During the pendency of the suit, Smt.Venkatamma passed away on 14.06.2017. Therefore, the first respondent withdrew the suit on 31.07.2017, with liberty to file a fresh suit on a fresh cause of action. Subsequently the first respondent filed O.S.No.5967/2017 seeking declaration of title with respect to the two sites, against Smt.Munirathnamma. It is relevant to notice here the date of execution of the two sale deeds in favour of the petitioners, is 07.07.2017. Subsequent to the filing of O.S.No.5967/2017, after the first respondent came to know of the execution of the sale deeds, he filed an impleading application to implead the petitioners herein as defendants in the suit. It is an admitted fact that the petitioners herein filed written statements subsequent to their impleadment in the suit. 25. In the meanwhile, since the officials of the BBMP did not sanction the plan and issue building licence for taking up construction on the two sites, the first respondent had filed W.P.Nos.47441-47442/2016 seeking directions for sanctioning of the plan and building licence. 25. In the meanwhile, since the officials of the BBMP did not sanction the plan and issue building licence for taking up construction on the two sites, the first respondent had filed W.P.Nos.47441-47442/2016 seeking directions for sanctioning of the plan and building licence. On 23.08.2017 the building plan was sanctioned and licence was granted by BBMP in favour of the first respondent herein. 26. The petitioners herein filed W.P.Nos.22881 and 28504/2019 on 31.05.2019 with a prayer to cancel the khata, plan and licence, including prevention of construction being put up on sites No.411 and 416. Though prayer was made against the first respondent herein, he was not impleaded as a party respondent and neither was Vyalikaval House Building Co-operative society impleaded as a party respondent. On 22.07.2019, the first respondent herein filed an impleading application in the said writ petition giving complete details of the background of the case. On 26.07.2019, the petitioners filed a memo stating that the vendor of the impleading applicant by name Kariyappa had filed a suit in O.S.No.6600/2018 seeking relief of declaration against the petitioners and therefore, petitioners sought to withdraw the writ petition with liberty to prosecute the suit. 27. Therefore the questions that arise for consideration are: i) Whether a second writ petition is maintainable, without there being any liberty reserved in favour of the petitioners while the earlier writ petition was dismissed as withdrawn? ii) Whether the writ petition is barred in view of the express provision under Sub-rule (4) of Rule 1 of Order XXIII of CPC; and iii) Whether the petitioners are guilty of suppression of material facts? 28. There cannot be any dispute that the petitioners, in the earlier writ petition had sought for cancellation of the plan and licence granted in favour of the first respondent. The very same prayer is once again made in this writ petition. Therefore, the contention of the learned Counsel for the petitioners that in the earlier writ petition a prayer was made for consideration of the representation dated 10.05.2019, while in the present writ petition cancellation of the sanctioned plan and building licence is sought and therefore the cause of action are different, is required to be dismissed as an attempt to browbeat this Court and such submissions are nothing but legal jugglery. Whether the other prayer seeking review of the orders dated 26.07.2017 and 30.08.2017 in Writ Petition Nos.47441-47442/2016 at the instance of petitioners who acquired title subsequently is another issue which need not be gone into at this stage. In the considered opinion of this Court, raising such additional prayers in the subsequent proceedings is also an attempt to mislead the Court stating that the cause of action is different and this too amounts to legal jugglery. As rightly pointed out by the learned Senior Counsel, the words of the Apex Court in the case of Kishore Samrite (supra) would squarely cover such contention while holding that when true facts are not disclosed, when there is suppression or concealment of material facts, it is impermissible to a litigant or even as a technique of advocacy, to permit entertainment or indulgence at the hands of this Court. Concealment of material facts is jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. 29. The submission of the learned Counsel for the petitioners that the non-disclosure of the facts averred in the earlier writ petition is not material for the consideration of the present writ petition also requires to be dismissed for more than one reason. In the earlier writ petition, in the prayer column, a specific prayer is made in prayer (b) to prevent the illegal construction put up on site No.411 and 416. Even at paragraph No.18, it was stated that the officials of the BBMP were encouraging the illegal constructions put up by the allottees in sites No.411 and 416. It is relevant to notice that though the petitioners herein were impleaded in O.S.No.5967/2017 and they had filed written statements, nothing is stated about the pendency of the said suit in the earlier writ petition. However, clandestinely, a prayer is made for cancellation of the khata, sanction plan, building licence and for preventing further construction on sites No.411 and 416. Under such circumstances, when it is submitted by the learned Senior Counsel for respondent No.1 that no sooner an impleading application was filed bringing the true facts to the notice of this Court, the petitioners, foreseeing adverse orders at the hands of this Court, withdrew the writ petition, holds considerable substance. 30. Under such circumstances, when it is submitted by the learned Senior Counsel for respondent No.1 that no sooner an impleading application was filed bringing the true facts to the notice of this Court, the petitioners, foreseeing adverse orders at the hands of this Court, withdrew the writ petition, holds considerable substance. 30. It is also required to be noticed that when the earlier writ petition was withdrawn on the ground that the vendor of the impleading applicant Sri Kariyappa had filed a suit seeking declaration of title against the petitioners herein and the petitioners sought liberty to contest the said suit, nothing has been said in the present writ petition as to what transpired in the suit and what prompted the petitioners to file the instant writ petition. This assumes significance because Smt.Venkatamma had disposed of the entire extent of 1 acre and 08 guntas in Sy.No.34/1 in favour of Sri Kariyappa in the year 2003. Therefore, the said Sri Kariyappa seems to have questioned the execution of the gift deed purportedly executed by Smt.Venkatamma in favour of her granddaughter Smt.Munirathnamma and the subsequent sale deeds executed in favour of the petitioners herein. A cloud having been raised against the title of the petitioners in a duly constituted suit and unless and until the petitioners could establish their legitimate right over the property bearing Sy.No.34/1, they cannot be allowed to seek cancellation of the sanctioned plan and building licence issued in favour of the first respondent herein. These are material facts which were required to be stated by the petitioners, while they invoke the equitable jurisdiction under Article 226 of the Constitution of India, vested with this Court. Time and again it has been held by the Hon ble Apex Court in a catena of cases that he who seeks equity is required to approach this Court with clean hands. 31. Since the petitioners have invoked equity at the hands of this Court, this Court cannot help but observe that the petitioners have not approached this Court with clean hands. The petitioners have not taken any positive step by instituting a duly constituted suit to establish their legitimate right, title and interest over the two sites in question. On the other hand, the first respondent has filed a suit seeking declaration of his title over the two sites. The petitioners are party defendants in the said suit. The petitioners have not taken any positive step by instituting a duly constituted suit to establish their legitimate right, title and interest over the two sites in question. On the other hand, the first respondent has filed a suit seeking declaration of his title over the two sites. The petitioners are party defendants in the said suit. If the petitioners were serious about their claim to title over the property in question, they would have taken positive steps to establish their right in a manner known to law. At the same time, interim relief could have also been sought in such duly constituted proceedings to protect the rights of the petitioners against any construction or change in the nature of the property, pending final consideration of such proceedings. Adverse inference is required to be drawn against the petitioners in the absence of any such proceedings initiated by the petitioners. 32. Clause (b) of Sub-rule (4) of Rule 1 of Order XXIII of CPC provides that where the plaintiff withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. As noticed earlier, in the earlier writ petition filed by the petitioners, the second prayer was for directing the Commissioner, BBMP to cancel the khata, plan and licence sanctioned in respect of various sites formed in Sy.No.34/1 measuring 1 acre 08 guntas, including sites bearing No.411 and 416 and to further prevent illegal construction upon sites bearing No.411 and 416. There being no permission sought by the petitioners while withdrawing the said writ petition to institute any fresh proceedings in respect of such subject matter and such permission not having been reserved in favour of the petitioners, a fresh proceedings in the nature of writ proceedings with the same prayer, is barred in terms of Clause (b) of Sub-rule (4) of Rule 1 of Order XXIII of CPC. 33. The issues raised are accordingly answered in favour of the first respondent and against the petitioners. Observations made by this Court touching upon the title of the petitioners with respect to the property in question was required to be made since the conduct of the petitioners was called in question. 33. The issues raised are accordingly answered in favour of the first respondent and against the petitioners. Observations made by this Court touching upon the title of the petitioners with respect to the property in question was required to be made since the conduct of the petitioners was called in question. However, such observations shall not prejudice the case of the petitioners in the pending suits or any other proceedings. 34. This Court proceeds to hold that the instant writ petition is a blatant abuse of the process of this Court. Consequently, the writ petition stands dismissed imposing costs of Rs.10,000/- on the petitioners. The costs shall be payable to the Advocate Clerks Benevolent Fund within a period of two weeks from the date of receipt of a copy of this order. Compliance shall be reported to the Registry. Ordered accordingly.