Smt. Rukkamma Vs Smt. Nanjamma

SMT. NANJAMMA W/O. GOPALA REDDY, D/O. LATE VENKATAPPA, AGED ABOUT 82 YEARS, R/AT BOMMANAHALLI VILLAGE, OPP BBMP OFFICE, BEGUR HOBLI AND POST, BANGALORE SOUTH TALUK, BANGALORE.

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SRI. VENKATESHWARA. M. N. S/O. LATE D. MUNIREDDY, AGED ABOUT 52 YEARS, R/AT DODDAKANAHALLI VILLAGE, CARMALRAM POST, SARJAPURA ROAD, BANGALORE-560 035.

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SMT. VANITHA W/O. LATE N. RAMAIAH, D/O. D. MUNIREDDY, R/AT KONEPPANA AGRAHARA, ELECTRONIC CITY POST, BANGALORE-560 100.

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SMT. MANJULA W/O. SRI. GOPAL, AGED ABOUT 48 YEARS, R/AT NO. 15, UDAYAKUMAR HOUSE,

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16TH MAIN, TAVAREKERE ROAD, BTM FIRST STAGE, BANGALORE.

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SRI. VENKATARAMANAPPA S/O. MUNIYAPPA, AGED ABOUT 60 YEARS, R/AT NO. 156, KATHALIPALYA, KORAMANGALA, 6TH BLOCK, BANGALORE-560 095.

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SRI. NAGARAJ S/O. MUNIYAPPA, AGED ABOUT 45 YEARS, R/AT NO. 156, KATHALIPALYA, KORAMANGALA, 6TH BLOCK, BANGALORE-560 095.

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SRI. JAGADISH. M. G. S/O. GANGADHAR, AGED ABOUT 46 YEARS, R/AT NO. 5, IN SY. NO. 83/2B, NEAR WIPRO CORPORATE OFFICE, CARMALARAM POST, SARJAPURA ROAD, BANGALORE-560 035.

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…RESPONDENTS

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(BY SRI.V.B.SHIVAKUMAR, ADVOCATE FOR C/R-5; SRI.P.K.SHRIKARA, ADVOCATE FOR C/R-7)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE ORDER DATED 04.12.2023 PASSED IN OS NO.6707/2013 ON THE FILE OF XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND PARTITION.

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THIS APPEAL, COMING ON FOR PART HEARD IN ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiff assailing the Judgment and Decree passed in O.S. No. 6707/2013, wherein plaintiff's suit seeking relief of partition and separate possession is dismissed

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as barred by limitation and also barred by principles of constructive res judicata.

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2) For the sake of brevity the parties are referred

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to as per their ranking before the Trial Court.

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The family tree of the parties is extracted as

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under:

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GENELOGICAL TREE

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Venkatappa @ Pillaiah (late)

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Munireddy (late) 2.Nanjamma, (daughter) 3. Rukkamma (daughter) aged 73 years aged 71 years

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Venkateswara (son) aged 42 years

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Vanitha, daughter Manjula (daughter) aged 40 years aged 38 years

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The plaintiff–Rukkamma, daughter of late

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Venkatappa, instituted the present suit for partition asserting that the suit schedule property forms part of the joint family ancestral estate. It is her specific case that though defendant Nos.3 and 4 had earlier instituted a suit for partition in O.S.No.911/2005, wherein the present plaintiff was impleaded as a co-plaintiff, the suit schedule property was inadvertently omitted from the said proceedings. The plaintiff has pleaded that during the first week of July 2013, defendant No.7 approached the suit land and asserted ownership over an extent of 3 guntas, claiming to have purchased the same from defendant No.6. Alarmed by this assertion, the plaintiff approached

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the competent authority, secured certified copies of documents, and discovered that defendant No.6 had executed a registered sale deed dated 07.04.2006 in respect of land bearing Sy.No.83/2B. Upon further enquiry, it was revealed that defendant Nos.5 and 6 were the first transferees, having purchased the said property

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under a registered sale deed dated 20.01.1993 from defendant Nos.2 to 4.

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The plaintiff further contended that the

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alienation in favour of defendant Nos.2 to 4 was effected by the father of defendant No.2 in favour of defendant No.4, who is none other than the brother of the plaintiff and defendant No.1. Asserting that the suit schedule property continued to retain its character as joint family ancestral property and that no partition had been effected in respect thereof, the plaintiff instituted the present suit for partition. It was specifically pleaded that the plaintiff and defendant Nos.1 to 4 continued to be in joint possession and enjoyment of the suit schedule property. Placing reliance on the amendment to Section 6 of the Hindu Succession Act, 1956 (herein after referred as 'Act, 1956') the plaintiff asserted her status as a coparcener and sought allotment of an equal share in the suit schedule property.

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On service of summons, defendant Nos.1 to 4

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remained absent and were placed ex-parte. Defendant Nos.5, 6 and 7 entered appearance and filed their written statements. Defendant Nos.5 and 6, in particular, raised preliminary objections contending that the suit was not maintainable, was hopelessly barred by limitation, and was hit by the principles of res judicata and Order II Rule 2 of the Code of Civil Procedure, 1908, (for short "CPC"), in view of the judgment and decree passed in the earlier partition suit in O.S.No.911/2005.

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The parties adduced both oral and documentary evidence in support of their respective claims. Upon appreciation of the rebuttal evidence led by defendant Nos.5 and 6, the Trial Court answered Issue Nos.6 and 7 in the affirmative and against the plaintiff. The Trial Court held that the present suit for partition was barred by limitation and that the suit was also hit by the bar contained under Order II Rule 2 of CPC, having regard to the judgment and decree passed in the earlier partition

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suit in O.S.No.911/2005. Consequently, the suit came to be dismissed. Aggrieved by the said judgment and decree, the plaintiff has preferred the present appeal.

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The learned Senior Counsel appearing for the appellant–plaintiff, reiterating the grounds urged in the appeal memo, vehemently contended that the findings recorded by the Trial Court on Issue Nos.6 and 7 are perverse, contrary to settled principles of law, and therefore warrant interference by this Court. During the course of arguments, the learned Senior Counsel filed an application under Order XXIII Rule 1(3) of CPC, seeking leave of this Court to withdraw the suit in O.S.No.6707/2013, with liberty to pursue appropriate relief in the final decree proceedings arising out of the preliminary decree dated 15.12.2010 passed in O.S.No.911/2005.

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In support of the application seeking withdrawal

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of the suit, learned Senior Counsel placed reliance on the

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judgment rendered by the Hon’ble Apex Court in Masood Sab vs. Doddanna and Others¹ and the judgment of the High Court of Mysore in B.H. Radhakrishna vs. Guruvanna² . Placing reliance on the ratio laid down in the aforesaid decisions, it was contended that the plaintiff has made out sufficient grounds for withdrawal of the present suit and that the transferees of joint family ancestral property have no locus standi to oppose such withdrawal. It was further argued that liberty may be reserved in favour of the plaintiff to seek adjudication of her share in the suit schedule property in the pending final decree proceedings.

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Per contra, learned counsel appearing for defendant Nos.5 and 6 supported the findings and conclusions recorded by the Trial Court and vehemently opposed the application filed under Order XXIII Rule 1(3) of CPC. It was contended that the Trial Court, after a fullfledged trial, has conclusively adjudicated upon the

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1 1992 SCC OnLine Kar 331

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2 [1970(1) Mys.L.J. 363]

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plaintiff’s right to claim partition and has non-suited her on two distinct and independent grounds.

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It was further contended that the dismissal of

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the suit on the grounds of limitation and Order II Rule 2 of CPC not only determines the rights of the plaintiff but also conclusively adjudicates the rights of the transferees. The decree passed by the Trial Court enures to the benefit of defendant Nos.5 and 6, who had acquired the property as early as 20.01.1993. It was argued that permitting withdrawal of the suit at this stage would defeat the protection available to the defendants under Article 110 of the Limitation Act,1963 (hereinafter referred as 'Act, 1963') and would run contrary to the public policy underlying Order II Rule 2 as well as Order XXIII Rule 1 of CPC. It was contended that once a suit is adjudicated on merits, the grant of leave to withdraw the suit with liberty to institute fresh proceedings lies within the judicial discretion of the Court and that the present case does not

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warrant exercise of such discretion in favour of the plaintiff.

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This Court has heard the learned counsel appearing for the parties at length and has independently examined the pleadings, oral evidence, and documentary material placed on record. The appraisal undertaken by this Court is an independent and objective reassessment of the material available on record.

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Upon consideration of the rival submissions, the following points arise for consideration:

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(i) Whether the plaintiff has made out a case for withdrawal of the suit in O.S.No.6707/2013 with liberty to pursue her remedy in the final decree proceedings arising out of the preliminary decree dated 15.12.2010 passed in O.S.No.911/2005?

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(ii) Whether the findings recorded by the Trial Court on Issue Nos.6 and 7, holding that the suit is barred by limitation and hit by the principles enshrined under Order II Rule 2 of

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CPC, suffer from perversity and call for interference by this Court?

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Finding to Point No. i:

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It is not in dispute that the present plaintiff has instituted a second suit for partition in O.S.No.6707/2013, notwithstanding the fact that she was already a party to the earlier partition suit in O.S.No.911/2005. The records unequivocally establish that the earlier suit was instituted by defendant Nos.2 to 4 and that the present plaintiff, Rukkamma, voluntarily sought impleadment and was arrayed as plaintiff No.4 in the said proceedings. The earlier suit culminated in a decree, whereby shares were granted in favour of the present plaintiff as well as defendant Nos.2 to 4. The subject matter of the said suit pertained to agricultural land measuring 1 acre 16 guntas in Survey No.87 of Boganahalli Village, Varthur Hobli, Bengaluru East Taluk.

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Admittedly, in the said suit, the present plaintiff

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did not seek partition in respect of the present suit schedule property, which stood alienated under a registered sale deed dated 20.01.1993. The Trial Court has dismissed the present suit on two independent and substantial grounds, namely, that the suit is barred by limitation under Article 110 of the Act, 1963 and that it is also hit by the bar contained under Order II Rule 2 of CPC.

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It is trite law that a litigant, as a suitor, is dominus litis and has the autonomy to initiate legal proceedings of his/her choice. Equally well settled is the principle that no person can be compelled to institute a suit or to continue with litigation against his/her volition. However, once a litigant consciously institutes a suit and elects to prosecute a particular cause of action, the law does not permit the litigant to split the cause of action and prosecute it in a piecemeal manner. When a litigant seeks withdrawal of a suit with liberty to institute a fresh suit on the same cause of action, such liberty is not a matter of

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right but is subject to the judicial discretion of the Court, which discretion must be exercised judiciously and not mechanically.

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Even while considering an application under Order XXIII Rule 1 CPC, the Court is duty-bound to examine whether, having regard to the nature of the dispute, the conduct of the parties, and the stage of adjudication, a case is made out for grant of such liberty. The bar engrafted under Order XXIII Rule 1(3) CPC, which precludes institution of a fresh suit on the same cause of action in the absence of leave, is founded on considerations of public policy, namely, to prevent abuse of the process of Court, multiplicity of proceedings, and harassment of the opposite party.

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Where rights of parties stand conclusively adjudicated by a competent Court on merits, the decree passed thereon enures to the benefit of the successful party. Such vested rights crystallised by a judicial

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determination cannot be unsettled or nullified by

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permitting a litigant, who has suffered an adverse decree, to withdraw the suit and re-agitate the very same cause of action under the guise of fresh proceedings. The granting of permission to withdraw with liberty to bring a fresh suit in such cases virtually removes the bar of res judicata which would otherwise apply if a fresh suit on the same cause of action is brought. The finding recorded in present suit in favour of defendants therefore cannot be nullified at the intervention of a court by having recourse to Order XXIII Rule 1 of CPC . The plaintiff in the present case has not demonstrated any formal defect to seek relief under Order XXIII Rule 1 of CPC. The object of Order XXIII Rule 1 of CPC is not to allow a plaintiff with an opportunity of commencing a trial afresh when rights are accrued to defendants.

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The contention advanced by the learned Senior Counsel for the plaintiff that non-inclusion of the present suit schedule property in O.S.No.911/2005 constitutes a

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mere formal defect and that the plaintiff is therefore entitled to pursue her remedy in the pending final decree proceedings, cannot be accepted. This Court is not inclined to accede to the said submission. The dismissal of the present suit in O.S.No.6707/2013 rests on two substantial and determinative findings, and not on any technical or curable defect.

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It is an admitted position that defendant Nos.5 and 6 are subsequent purchasers. The first alienation of the suit schedule property was effected on 20.01.1993 by Muni Reddy, the father of defendant Nos.2 to 4 and brother of the plaintiff. From the date of alienation, the plaintiff as well as defendant Nos.1 to 4 were divested of physical possession of the suit schedule property. Notwithstanding the said alienation, when defendant Nos.2 to 4 instituted the partition suit in O.S.No.911/2005, neither they nor the present plaintiff who voluntarily joined the proceedings as co-plaintiff No.4 opted to include

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the alienated property as part of the joint family estate sought to be partitioned.

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The earlier suit in O.S.No.911/2005 was also a comprehensive suit for partition. There existed no legal impediment either for defendant Nos.2 to 4 or for the present plaintiff to seek inclusion of the present suit land, despite its alienation in 1993, by appropriately framing reliefs challenging the alienation or seeking partition subject to the rights of the transferees. Such a course was consciously not adopted. The omission, therefore, cannot be characterised as accidental or inadvertent.

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Once the plaintiff and defendant Nos.2 to 4 deliberately abandoned their claim in respect of the present suit land in the earlier partition suit and allowed the Court to adjudicate their rights and pass a decree, they are precluded from instituting a subsequent suit based on the very same cause of action. The principle underlying Order II Rule 2 CPC squarely applies. The Rule

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mandates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and any portion of the claim omitted or relinquished shall bar a subsequent suit in respect of the omitted portion.

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The Trial Court, having examined the factual matrix, has rightly held that the present suit is barred by limitation under Article 110 of the Act, 1963 and is also hit by the bar contained under Order II Rule 2 CPC. Once such findings are recorded and a decree has enured to the benefit of defendant Nos.5 and 6, any indulgence by permitting withdrawal of the suit at this stage would cause serious prejudice to the transferees and would amount to unsettling settled rights, thereby leading to miscarriage of justice.

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In the peculiar facts and circumstances of the case, permitting the plaintiff to withdraw the suit with liberty to pursue her claim in the final decree proceedings

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arising out of O.S.No.911/2005 would defeat the very object of Order II Rule 2 CPC and undermine the finality of judicial proceedings. The plaintiff, having consciously elected her remedy and having acquiesced in the exclusion of the suit land in the earlier partition suit, is clearly hit by the doctrines of estoppel, waiver, and acquiescence.

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Accordingly, this Court holds that the plaintiff is not entitled to withdraw the suit nor to seek inclusion of the suit schedule property in the pending final decree proceedings. Leave sought under Order XXIII Rule 1(3) CPC is therefore refused. Point No.(i) is answered in the

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Negative .

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Finding on Point No.(ii)

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The genealogical tree extracted supra unmistakably discloses that Muni Reddy was the sole son of Venkatappa, while the present plaintiff and defendant No.1—Nanjamma are his daughters. The pleadings reveal that the present suit is instituted primarily on the premise

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that, pursuant to the amendment to Section 6 of the Act, 1956, the plaintiff has acquired the status of a coparcener by legal fiction and is therefore entitled to seek partition of the suit schedule property and a declaration that the registered sale deed dated 20.01.1993 executed by Muni Reddy in favour of defendant Nos.5 and 6 is not binding on her share.

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It appears that the suit is instituted under a bona fide, though legally untenable, impression that the conferment of coparcenary rights upon daughters under the amended Section 6 automatically revives or reopens claims in respect of properties which stood alienated decades prior. While it is no doubt true that daughters are entitled to seek partition even in respect of alienated joint family properties, such entitlement is subject to statutory limitations and is expressly controlled by the provisos to Section 6, as also by the law governing limitation and procedural bars.

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This Court is of the considered view that the plaintiff’s right, if any, to seek partition of the present suit land which stood alienated by Muni Reddy in the year 1993 is irretrievably lost on two independent and decisive grounds.

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Firstly, the present suit is squarely hit by the bar contained under Order II Rule 2 of the Code of Civil Procedure, 1908, having regard to the judgment and preliminary decree passed in O.S.No.911/2005. It is an admitted position that defendant Nos.2 to 4 instituted the earlier suit for partition seeking division of agricultural land bearing Survey No.87 measuring 1 acre 16 guntas. The present plaintiff voluntarily got herself impleaded in the said suit and was arrayed as plaintiff No.4. In a suit for partition, the law mandates that the plaintiff must include the entire joint family estate in respect of which partition is sought. The cause of action in a partition suit is singular and comprehensive, namely, assertion of a right to be divided and separated from the joint status.

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It is not in dispute that neither defendant Nos.2

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to 4 nor the present plaintiff sought partition of the present suit land, which had been alienated as early as 1993. There was no legal impediment preventing them from questioning the alienation or seeking partition subject to the rights of the transferees. The conscious omission to include the alienated property in the earlier partition suit constitutes an abandonment of that portion of the claim. Order II Rule 2 CPC, which is founded on the salutary principle that a defendant should not be vexed twice for the same cause of action, prohibits not only the splitting of claims but also the splitting of remedies. The

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Rule obligates the plaintiff to include the whole of the claim arising from a cause of action, and failure to do so operates as a bar to any subsequent suit in respect of the omitted relief.

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Though the plaintiff now seeks to take

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advantage of the amendment to Section 6 of the Act, 1956, it must be presumed that the cause of action to

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seek partition was very much available at least by the year

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2005, when the earlier partition suit was instituted. The subsequent statutory recognition of coparcenary rights cannot be invoked to circumvent the embargo created by Order II Rule 2 of CPC. Once the plaintiff elected not to include the present suit land in O.S.No.911/2005, the bar under Order II Rule 2 of CPC applies in full force and true spirit. The records clearly reveal that the family lost the present suit land in 1993, and consequently, the cause of action to seek partition accrued in that year itself.

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This Court has also independently examined whether the present suit is barred by limitation, and whether the limitation prescribed under Article 110 of the Act, 1963 is attracted. Article 110 governs suits instituted by a person excluded from joint family property to enforce a right to share therein, and prescribes a period of twelve years, commencing from the point when the exclusion becomes known to the plaintiff.

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The recitals in the registered sale deed dated 20.01.1993 clearly establish that the alienation was effected by Muni Reddy, who was then the sole coparcener. Upon execution of the sale deed and delivery of possession, the plaintiff and other non-alienating members of the family were divested of physical possession of the suit land. Such alienation and loss of possession constitute a clear act of exclusion within the meaning of Article 110.

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The plaintiff, as a daughter, had at least a notional share in the joint family property even as on the date of alienation. Her failure to challenge the alienation or

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seek partition at the relevant point of time cannot be brushed aside. The plaintiff’s conduct in remaining silent for decades and thereafter setting up a fresh claim by instituting a second suit is a material circumstance which cannot be ignored. The limitation under Article 110 commenced, at the latest, in the year 1993, when the family lost possession. Even if a more liberal view is taken,

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the plaintiff had indisputable knowledge of the alienation

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by the year 2005, when she actively participated as a coplaintiff in the earlier partition suit. Reckoned from either date, the present suit instituted in 2013 is hopelessly barred by limitation.

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Therefore, the Trial Court has rightly held that the present suit is barred by limitation under Article 110 of Act, 1963 and the plaintiff cannot be permitted to revive a time-barred claim under the guise of a subsequent statutory amendment.

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This Court also cannot lose sight of the rights which accrued in favour of the transferees. Defendant Nos.5 and 6 acquired title to the suit schedule property under a registered sale deed for valuable consideration in the year 1993, and they, in turn, have conveyed a portion of the property in favour of defendant No.7 under a registered sale deed dated 07.04.2006. The rights thus

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acquired by the transferees have stood crystallised by long passage of time and uninterrupted enjoyment.

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The principles laid down by the Hon’ble Supreme Court in Chhedilal Yadav and others Vs. Harikishore Yadav (dead) through legal representatives and others³ squarely apply to the facts of the present case. A transferee who acquires property under a registered instrument for valuable consideration is entitled to protection of law, particularly when the alienation remains unquestioned for an inordinately long period. The plaint is conspicuously silent as to why the plaintiff did not challenge the alienation effected by her brother in 1993, either contemporaneously or even in the earlier partition suit of 2005.

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In view of the above discussion, this Court holds that the plaintiff is liable to be non-suited not only on the ground of limitation and the statutory bar under Order II Rule 2 CPC, but also on the ground that the

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transferees’ rights have long since attained finality and cannot now be unsettled. For the foregoing reasons, Point No.(ii) is answered in the Negative .

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Conclusions:

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a) The principles governing withdrawal of suits

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under Order XXIII Rule 1 of the Code of Civil Procedure, 1908 are well settled. The provision strikes a delicate balance between two competing considerations: on one hand, the autonomy of a litigant as dominus litis to institute or withdraw proceedings; and on the other, the larger public policy imperative of preventing abuse of judicial process, multiplicity of litigation, and harassment of the opposite party.

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b) Order XXIII Rule 1(1) recognizes the right of a plaintiff to withdraw a suit at any stage of the proceedings. However, such withdrawal, if effected without seeking liberty to institute a fresh suit, attracts the statutory bar under Rule 1(4), which precludes the plaintiff

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from bringing a fresh suit on the same subject matter. Thus, while the right to withdraw is absolute, the consequence of such withdrawal is equally absolute unless liberty is expressly granted.

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c) Order XXIII Rule 1(3) confers discretionary power on the Court to permit withdrawal of a suit with liberty to institute a fresh suit. Such liberty may be granted only if the Court is satisfied that the suit must fail by reason of some formal defect or that there exist other sufficient grounds to justify the institution of a fresh suit. The satisfaction contemplated under Rule 1(3) is not mechanical but judicial. The Court must record reasons demonstrating that the case falls within the parameters of the Rule.

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d) The expression “formal defect” has received consistent judicial interpretation. It refers to defects of form or procedure, such as absence of statutory notice, improper valuation, insufficient court fee, misjoinder or

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non-joinder of necessary parties, or lack of jurisdiction. A formal defect does not extend to defects touching upon the merits of the case. Failure to establish title, adverse findings on evidence, omission to include a claim deliberately, bar of limitation, operation of res judicata, or findings under Order II Rule 2 CPC are not formal defects. A defect arising from conscious omission or strategic choice cannot be dressed up as a technical infirmity.

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e) Though Order XXIII Rule 1 applies equally at

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the appellate stage by virtue of Section 107 CPC, the exercise of discretion becomes far more circumspect once a decree has been passed. At the appellate stage, rights have crystallised in favour of the successful party, and such vested rights cannot be lightly unsettled. The appellate Court must therefore be slow in granting permission to withdraw with liberty when a decree has enured to the benefit of the respondent.

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f) Withdrawal cannot be permitted merely

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because the plaintiff apprehends dismissal of the appeal, or because adverse findings have been recorded on limitation or under Order II Rule 2 CPC, or because the case appears weak on merits. The provision cannot be invoked as a device to circumvent adverse findings or to nullify conclusions that would otherwise operate as res judicata in subsequent proceedings.

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g) The underlying public policy behind Order XXIII Rule 1 is to prevent repeated litigation on the same cause of action. Courts must guard against litigants employing withdrawal as a strategic mechanism to avoid binding precedents, to re-agitate issues already concluded, to prolong litigation, or to prejudice transferees and third parties who have acquired rights on the strength of a decree. If granting liberty would undermine finality, reopen settled issues, or defeat statutory bars such as limitation or Order II Rule 2 CPC, the Court would be justified in declining such permission.

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h) The phrase “other sufficient grounds” occurring in Rule 1(3) has been construed ejusdem generis with “formal defect.” It does not confer an unfettered discretion. It cannot include a change in litigation strategy, discovery of weakness in evidence, omission to include property or relief by deliberate choice, or an attempt to bypass statutory prohibitions. The ground must be analogous to a defect of a technical nature that renders the suit non-maintainable for reasons not touching the merits.

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i) A plaintiff should therefore not be permitted to withdraw the suit with liberty to institute a fresh suit where the matter has been adjudicated on merits; where dismissal rests on limitation; where the suit is barred under Order II Rule 2 CPC; where the omission to claim relief earlier was deliberate; where rights of third parties such as bona fide purchasers have intervened; where granting liberty would virtually remove the bar of res judicata; or where the attempt is plainly to avoid the

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consequences of an adverse decree. In the absence of any demonstrable formal defect, and where the defect alleged goes to the root of the claim rather than to its form, the discretion under Rule 1(3) cannot be exercised in favour of the plaintiff.

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j) The governing judicial principles that emerge are clear. The discretion under Order XXIII Rule 1 is not mechanical but judicial and reasoned. Merits-based adjudication cannot be undone by permitting withdrawal. The provision is not intended to grant a litigant a second innings to cure substantive lapses. Accrued rights of the defendants must be protected. Finality of litigation is a fundamental consideration. The conduct of the plaintiff is also relevant; deliberate omission, waiver, or acquiescence disentitles the plaintiff to equitable relief.

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k) In the context of partition suits, these principles assume particular significance. If a co-sharer consciously omits certain properties in an earlier comprehensive

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33 - NC: 2026:KHC:3600 RFA No. 505 of 2024

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HC-KAR

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partition suit and allows a decree to be passed, such omission cannot later be characterised as inadvertent. A subsequent suit for partition of the omitted property would attract the bar under Order II Rule 2 CPC. An application for withdrawal at a later stage, designed to circumvent such bar or to revive a relinquished claim, cannot be countenanced.

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l) In conclusion, the power under Order XXIII Rule 1 CPC is intended to prevent failure of justice arising from technical defects, not to facilitate re-litigation or to unsettle vested rights. Particularly at the appellate stage, where statutory bars operate and rights have crystallised,

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permission to withdraw with liberty to institute a fresh suit must be refused unless a clear case of formal defect or analogous sufficient ground is established. To hold otherwise would defeat statutory mandates, erode the doctrine of finality, and encourage abuse of the judicial process.

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