Allowed¶58

Smt J Shaila v. Smt Nirmala

Karnataka HC28 Nov 2025CRP/193/2020

Case brief

AI extract

What is this about?

CRP No. 193 of 2020; NC: 2025:KHC:49576; S.115 CPC revision; Order XXIII Rule 1(3) CPC withdrawal of suit with liberty to file fresh suit; partial allowance of withdrawal application impermissible absent formal defect; partition suit O.S.No.4671/2012 Principal City Civil and Sessions Judge Bangalore; impugned order dated 30.11.2019 set aside; suit restored and remitted for fresh disposal; plaintiff to appear 15.12.2025; Aspen Buildtech Ltd. v. Epicuria Galley Pvt. Ltd., AIR 2020 Delhi 82 referred.

What did the court decide?

Revision petition allowed; impugned order dated 30.11.2019 in O.S.No.4671/2012 set aside and matter remitted to the trial Court for fresh disposal; plaintiff to appear before the trial Court on 15.12.2025, whereafter Court notice to the respondents, restoration of the suit and proceeding in accordance with law.

Smt J Shaila Vs Smt Nirmala — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the Trial Court could allow the plaintiff's application under Order XXIII Rule 1(3) CPC only in part - permitting withdrawal of the suit while refusing the liberty to institute a fresh suit - or whether the application had to be rejected in toto or allowed in toto. +1 more

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Court's answer

Allowing the withdrawal application in part - permitting withdrawal without the liberty sought - impaired the rights of the plaintiff; consequently the impugned order is liable to be set aside.

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Ratio / Principle

Under Order XXIII Rule 1(3) CPC, permission to withdraw a suit with liberty to institute a fresh suit retaining the cause of action is available only where the Court is convinced that the suit should fail by reason of some formal defect; a part of the claim or the whole may equally be abandoned.

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Key takeaways

No formal defect was noted in the suit; therefore the Trial Court ought to have rejected the plaintiff's application under Order XXIII Rule 1(3) CPC and allowed her to continue with the suit.ratio¶49
The suit is to be restored and tried in accordance with law on merits, with the plaintiff's withdrawal application rejected.ratio¶54

Detailed headnote1 paragraphs

High Court of Karnataka (V Srishananda J., oral order dated 28.11.2025) allowed CRP No. 193 of 2020 under S.115 CPC filed by the plaintiff in O.S.No.4671/2012 - a partition suit by a daughter against her mother, brother and sister - challenging the Principal City Civil and Sessions Judge, Bangalore's order dated 30.11.2019 on her application under Order XXIII Rule 1(3) CPC, by which, on an assurance of settlement during the suit's pendency, she was permitted to withdraw the suit but was refused liberty to file a fresh suit (application allowed only in part). Held: withdrawal with liberty under Order XXIII Rule 1(3) CPC presupposes the Court's satisfaction that the suit must fail by reason of a formal defect; no formal defect was noted here, so the Trial Court ought to have rejected the application, and allowing it in part impaired the plaintiff's rights. Impugned order set aside; matter remitted for fresh disposal; plaintiff directed to appear on 15.12.2025; suit restored and to proceed on merits. Aspen Buildtech Ltd. v. Epicuria Galley Pvt. Ltd., AIR 2020 Delhi 82, placed on record by counsel, was referred.

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NC: 2025:KHC:49576 CRP No. 193 of 2020

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 193 OF 2020

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BETWEEN:

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SMT J. SHAILA D/O LATE M. JAYARAMA REDDY W/O KUMAR G AGED ABOUT 43 YEARS R/AT NO. 150, II FLOOR, 6^TH CROSS ROAD, SHASTRI NAGAR BANASHANKARI, BANGALORE - 560 028.

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…PETITIONER

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(BY SRI. G A SRIKANTE GOWDA.,ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

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SMT NIRMALA W/O LATE M. JAYARAMA REDDY AGED ABOUT 67 YEARS

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SHRI. OMPRAKASH J., S/OLATE M. JAYARAMA REDDY AGED ABOUT 41 YEARS

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BOTH ARE R/AT PLOT NO. 204, IIND BRIGADE MAY FAIR APARTMENTS, NO.22, CAMBRIDGE LAYOUT ROAD,

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2 - NC: 2025:KHC:49576 CRP No. 193 of 2020

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HC-KAR

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HALSOOR, BANGALORE - 560 020.

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SMT. DR. REKHA D/O LATE M. JAYARAMA REDDY, W/O PRAKASH REDDY, AGED ABOUT 45 YEARS, R/AT NO. 1236, 24^TH MAIN ROAD, 25^TH CROSS, I SECTOR, H.S.R. LAYOUT, BANGALORE - 560 102.

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…RESPONDENTS

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(R1 TO R3 SERVED)

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THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER DATED 30.11.2019 PASSED ON IA IN OS NO.4671/2012 ON THE FILE OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE PARLTY ALLOWING THE IA FILED UNDER ORDER 23 R1(3) OF CPC., FOR WITHDRAWAL OF THE SUIT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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NC: 2025:KHC:49576 CRP No. 193 of 2020

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HC-KAR

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ORAL ORDER

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Heard Sri. G. A. Srikante Gowda, learned counsel for the

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revision petitioner.

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None appears for the respondents.

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The plaintiff in O.S.No.4671/2012 is the revision petitioner, challenging the Order passed by the learned Trial Judge dismissing the application filed under Order XXIII Rule 1(3) of CPC by the plaintiff in toto.

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Plaintiff is the daughter, who filed the suit against her mother, brother and sister for partition. That during the pendency of the suit, there is an assurance of settlement. Therefore, plaintiff filed an application seeking to withdraw the suit and in event there is no settlement to file a fresh suit.

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The learned Trial Judge having heard the arguments of the parties, allowed the said application only in part in permitting the plaintiff to withdraw the suit and did not grant the liberty as prayed for in the application. Such an approach is incorrect is the submission made on behalf of the revision petitioner.

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4 - NC: 2025:KHC:49576 CRP No. 193 of 2020

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HC-KAR

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In support of his arguments, Sri. G. A. Srikante Gowda, learned counsel for the revision petitioner places on record copy of the decision rendered in Aspen Buildtech Ltd., Vs. Epicuria Galley Pvt. Ltd.,¹ the relevant paragraphs are paragraph Nos.21 and 22. He further submitted that there was no option for the trial Court to allow the application in part. It is his further submission that the application ought to have been rejected in toto or allowed in toto and therefore, the impugned order is incorrect.

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Having heard Sri. G. A. Srikante Gowda, learned counsel for the revision petitioner, this Court perused the material on record meticulously.

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On such perusal of material on record, it is just and necessary for this Court to refer the Order XXIII Rule 1(3) of CPC, which reads as under:

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'' (3) Where the Court is satisfied,—

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(a) that a suit must fail by reason of some formal defect, or

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1 AIR 2020 DELHI 82

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NC: 2025:KHC:49576 CRP No. 193 of 2020

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HC-KAR

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b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.''

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Taking note of the fact that only a part of the suit claim can be abandoned or whole against any one the parties or against the whole and wherever the Court is convinced that the suit should fail on formal defect, the suit can be permitted to be withdrawn with liberty to file a fresh suit retaining the cause of action.

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In the case on hand, no such formal defect is noted. Under such circumstances, the trial Court ought to have rejected the application and allowed the plaintiff to continue with the suit.

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Having not done so, allowing the application in part and permitting only for the withdrawal has resulted in impairing the rights of the plaintiff and therefore impugned order needs to be set aside.

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NC: 2025:KHC:49576 CRP No. 193 of 2020

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HC-KAR

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Having said so, the suit should be restored and it should be tried in accordance with law on merits by rejecting the application filed by the plaintiff.

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Hence, following:

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ORDER

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i. Revision petition is allowed.

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ii. Impugned order dated 30.11.2019 in O.S.No.4671/2012 is set aside and matter is remitted to the trial Court for fresh disposal.

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iii. Plaintiff shall appear before the trial Court positively on 15.12.2025 and thereafter Court shall issue Court notice to the respondents and restore the suit and proceed with the suit in accordance with law.

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Sd/(V SRISHANANDA) JUDGE

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List No.: 1 Sl No.: 32

Smt J Shaila v. Smt Nirmala

Case brief

What is this about?

What did the court decide?

Smt J Shaila v. Smt Nirmala

Case brief

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