Sri T B Nagaraju Vs Sri Ganganarasaiah

SRI. T.B. NAGARAJU SON OF GANGANARASAIAH AGED ABOUT 63 YEARS, RESIDING AT HOUSE NO. 41 AND 42, 'NAVEEN NILAYA', 3RD CROSS, GANGANARASAPPA LAYOUT, ANJANEYA TEMPLE ROAD, THIPPENAHALLI VILLAGE, NAGASANDRA POST, BANGALORE - 560 073.

¶11

…PETITIONER

¶12

Digitally signed by SHARADAVANI B

¶13

Location: High Court of Karnataka

¶14

(BY SRI. P.M. GOPI, ADVOCATE FOR SRI. P.M. SIDDAMALLAPPA, ADVOCATE)

¶15

AND:

¶16

SRI. GANGANARASAIAH SON OF LATE KAMBAIAH AGED ABOUT 84 YEARS RESIDING AT GANGANARASAPA LAYOUT, ANJANEYA TEMPLE ROAD, THIPPENAHALLI VILLAGE, NAGASANDRA POST BANGALORE - 560 073.

¶17

2 - NC: 2026:KHC:681 WP No. 6705 of 2024

¶18

HC-KAR

¶19

SRI. K.B. KRISHNAMURTHY SON OF LATE KAMBAIAH AGED ABOUT 54 YEARS RESIDING AT GANGANARASAPPA LAYOUT ANJANEYA TEMPLE ROAD, THIPPENAHALLI VILLAGE, NAGASANDRA POST BANGALORE - 560 073.

¶20

SRI. GOPAL T.G. SON OF SRI. GANGANARASAIAH AGED ABOUT 45 YEARS RESIDING AT GANGANARASAPPA LAYOUT, ANJANEYA TEMPE ROAD THIPPENAHALLI VILLAGE NAGASANDRA POST BANGALORE - 560 073.

¶21

…RESPONDENTS

¶22

(BY SRI. GOPALA KRISHNA B.N, ADVOCATE FOR R1 AND R3; R2 SERVED AND UNREPRESENTED)

¶23

THIS WP IS FILED UNDER ARTICLE 227 OF THE

¶24

CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20/12/2023 PASSED IN OS NO.313/2019 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC MAGADI VIDE ANNEXURE-F AND ETC.,

¶25

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶26

3 -

¶27

NC: 2026:KHC:681 WP No. 6705 of 2024

¶28

HC-KAR

¶29

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

¶30

ORAL ORDER

¶31

This petition by the plaintiff in O.S.No.313/2019 is directed against the impugned order dated 20.12.2023 passed on I.A.No.5, whereby the said application filed by the petitioner/plaintiff under Order 23 Rule 1 CPC seeking permission to withdraw the suit with liberty to file a fresh suit was partly allowed by the trial Court, which permitted withdrawal but declined to grant liberty in favour of the petitioner/plaintiff to file a fresh suit.

¶32

Heard the learned counsel for the petitioner and the

¶33

learned counsel for the respondents and perused the material on record.

¶34

A perusal of the material on record will indicate that the petitioner/plaintiff instituted the aforesaid suit against the respondents/defendants for partition and separate possession of their alleged share in the suit schedule immovable properties and for other reliefs. The respondents/defendants having contested the said suit, the trial Court framed issues and at the stage of further evidence, the petitioner/plaintiff filed instant

¶35

4 -

¶36

NC: 2026:KHC:681 WP No. 6705 of 2024

¶37

HC-KAR

¶38

application seeking permission to withdraw the suit with permission to file a separate comprehensive suit. The said application having been opposed by the respondents/defendants, the trial Court proceeded to pass the impugned order partly allowing the application thereby permitting the petitioner/plaintiff to withdraw the suit but declining to grant permission to institute a fresh suit on the same cause of action. Aggrieved by the impugned order passed by the trial Court, the petitioner/plaintiff is before this Court by way of the present petition.

¶39

A perusal of the material on record including the impugned order will indicate that the sole ground on which the trial Court proceeded to reject I.A.No.5 is by coming to the conclusion that there was a delay on the part of the plaintiff in seeking withdrawal of the suit. In this context, the trial Court failed to consider and appreciate the averments made in the affidavit filed in support of the application, which constituted valid and sufficient grounds/cause so as to enable the petitioner/plaintiff to withdraw the suit together with granting liberty in favour of the petitioner/plaintiff to file a fresh suit.

¶40

5 - NC: 2026:KHC:681 WP No. 6705 of 2024

¶41

HC-KAR

¶42

The said the impugned order is also contrary to the judgment of the Co-ordinate bench of this Court in the case of

¶43

Chikkamadaiah vs. Ningamma and others reported in LAWS(KAR)-2017-3-67 , wherein this Court has held that if an application under Order 23 Rule 1 CPC is filed, the trial Court has only two options viz., either dismiss the application in full or allow the application thereby granting permission for withdrawal as well as liberty to file a fresh suit by safeguarding the rights and defences available to the defendants in the event such a fresh suit is filed including the defence of limitation. In the said judgment, this Court held as under:

¶44

"The present writ petition is filed by the first plaintiff against the order dated 6.2.2016 dismissing I.A.No.VII, filed by the plaintiffs under Order XXIII Rule 1(3)(a) r/w. Section 151 of Code of Civil Procedure in O.S.No.56/2014 on the file of the I Additional Civil Judge and JMFC., Malavalli.

¶45

2. The plaintiffs filed a suit in O.S.No.56/2014 for partition and separate possession in the suit schedule properties contending that the suit schedule properties are joint family properties of the plaintiffs and defendant; plaintiffs and the defendant are the members of the joint family and there was no

¶46

6 -

¶47

NC: 2026:KHC:681 WP No. 6705 of 2024

¶48

HC-KAR

¶49

partition in the family, etc. The defendant filed her written statement denying the entire plaint averments and contended that no cause of action arose at the time of filing of the suit. She further contended that the suit for partition is not maintainable and some of the properties are not included in the plaint schedule and therefore suit is to be dismissed, etc.

¶50

3. When the matter was posted for evidence, at that stage, plaintiffs filed I.A.No.VII under Order XXIII Rule 1(3)(a) r/w. Section 151 of CPC to withdraw the suit with liberty to file a fresh suit contending that while the plaintiffs came to know some mistakes occurred while filing the suit and contended that all are in joint possession, the plaintiffs’ father and his elder brother did not get khatha in their names and same has not been stated in the plaint which is a formal defect occurred in the plaint, etc. Therefore, they want to withdraw the present suit with liberty to file a fresh suit.

¶51

4. The defendant filed objections to the said application. The trial Court on considering the application and the objections, rejected the said application by the impugned order mainly on the ground that the Court has to be satisfied about the existence of the formal defect due to which the suit

¶52

7 -

¶53

NC: 2026:KHC:681 WP No. 6705 of 2024

¶54

HC-KAR

¶55

is likely to fail or other sufficient ground for compelling the plaintiffs to institute fresh suit. Hence, the present writ petition is filed.

¶56

5. I have heard the learned counsel for the parties to the lis.

¶57

6. Sri Somashekhar Kashimath, learned counsel for the petitioner-plaintiff contended that the impugned order passed by the trial Court rejecting I.A.No.VII filed under Order XXIII Rule 1(3)(a) r/w. Section 151 of CPC is erroneous and contrary to the material on record. He further contended that the trial Court dismissed the application mainly on the ground that if there are any formal defects, then the plaintiffs are at liberty to correct the same in the plaint by filing necessary application which is contrary to the provisions of Order XXIII Rule 1(3)(a) of CPC. In support of his contention, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Baniram & others Vs. Gaind & others, reported in AIR 1982 SC 789 .

¶58

7. Per contra, Sri Rajeswara P.N., learned counsel for the first respondent-defendant No.1 sought to justify the impugned order.

¶59

8 -

¶60

NC: 2026:KHC:681 WP No. 6705 of 2024

¶61

HC-KAR

¶62

8. Having heard the learned counsel for the parties to the lis, the only point that arises for my consideration is:

¶63

“Whether the trial Court is justified in rejecting I.A.No.VII filed under Order XXIII Rule 1(3)(a) r/w. Section 151 of Code of Civil Procedure under the facts and circumstances of present case?”

¶64

9. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties. It is clear that the plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are joint family properties of the plaintiffs and the defendant. When the matter was posted for evidence, the plaintiffs filed I.A.No.VII under Order XXIII Rule 1(3)(a) of Code of Civil Procedure Code to withdraw the suit with liberty to file a fresh suit contending that there were some formal defects in filing the suit. The trial Court considering the said application, recorded a finding that on perusal of the pleadings and documents on record, certain rights have been accrued to the defendant. Therefore, if the plaintiff intends to change some of the facts, he can make by way of amendment, but without correcting the mistakes in the plaint by way of amendment, the plaintiff cannot seek withdrawal of the plaint itself is not permissible.

¶65

9 -

¶66

NC: 2026:KHC:681 WP No. 6705 of 2024

¶67

HC-KAR

¶68

10. The trial Court has failed to notice that at any stage of the suit, the plaintiff can file an application for withdrawal of the suit or abundan his suit where the Court is satisfied that a suit is filed with some formal defects and there are sufficient grounds for allowing the application to withdraw the suit and institute a fresh suit in respect of the subject matter of the claim or part of the claim. The trial Court has erred in holding that if there are formal defects, then the plaintiffs are at liberty to correct any defects occurred in the plaint by filing amendment application.

¶69

11. The trial Court is not justified in dismissing the application for withdrawal of the suit. The impugned order passed by the trial Court is against the very intention of the Legislature while enacting the provisions of Order XXIII Rule 1(3)(a) of Code of Civil Procedure. Having considered the fact that non-pleading of a point may prove a technical impediment and may result in the dismissal of the suit which may impede a fresh suit, this Court is of the considered opinion that it is just and proper in the interest of justice to permit the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action, subject to the payment of reasonable costs.

¶70

10 -

¶71

NC: 2026:KHC:681 WP No. 6705 of 2024

¶72

HC-KAR

¶73

12. The Hon’ble Supreme Court while considering the provisions of Order XXIII Rule 1(3)(a) of CPC in Baniram’s Case ( cited supra) has held as under:-

¶74

“We heard Mr.Phadke, learned counsel for the appellant for some time. After the discussion, at a certain stage, a contention was advanced by Mr.Phadke on a particular point, in the case and he conceded that it was not the case pleaded in the plaint. At this stage Mr.Phadke wishes to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action. Having considered the fact that nonpleading may prove a technical impediment and may result in the dismissal of the appeal which may impede a fresh adjudication if a point is to be made though belated, we consider it just and proper in the interests of justice to permit the appellant-plaintiff to withdraw the suit with liberty to file a fresh suit as stated hereinabove. We accordingly grant the permission subject to the condition that the appellant shall pay Rs.1,000/- by way of costs in this Court within two months from today in addition to any costs paid already under the orders of the High Court.”

¶75

13. For the reasons stated above, the point raised in the petition has to be held in the negative holding that the trial Court is not justified in dismissing the application filed by the plaintiffs.

¶76

11 -

¶77

NC: 2026:KHC:681 WP No. 6705 of 2024

¶78

HC-KAR

¶79

14. In view of the aforesaid reasons, writ petition is allowed. Impugned order dated 6.2.2016 passed by the trial Court on I.A.No.VII filed under Order XXIII Rule 1(3)(a) of Code of Civil Procedure is quashed. I.A.No.VII filed under Order XXIII Rule 1(3)(a) of Code of Civil Procedure is allowed, subject to payment of costs of Rs.2,000/- (Rupees two thousand only) payable to the defendant with liberty to the plaintiffs to file fresh suit in accordance with law."

¶80

In view of the aforesaid facts and circumstances

¶81

and the judgment of this Court in Chikkamadaiah's case supra, I am of the considered opinion that the impugned order passed by the trial Court insofar as it relates to declining to grant permission/leave in favour of the petitioner/plaintiff to file a fresh suit deserves to be set aside and the application deserves to be allowed in full.

¶82

In the result, I pass the following:

¶83

ORDER

¶84

i) The writ petition is allowed .

¶85

ii) Impugned order dated 20.12.2023 passed by the trial Court insofar as it relates to refusing/declining to grant permission/leave in

¶86

12 -

¶87

NC: 2026:KHC:681 WP No. 6705 of 2024

¶88

HC-KAR

¶89

favour of the petitioner/plaintiff to institute a fresh suit is hereby set aside.

¶90

iii) The application-I.A.No.5 filed by the petitioner /plaintiff is fully allowed.

¶91

iv) Liberty is granted/reserved in favour of the petitioner/plaintiff to file a fresh suit on the same cause of action.

¶92

v) In the event the petitioner/plaintiff desires to file such a fresh suit, the respondents/ defendants would be entitled to contest the same putting forth all defences, contentions etc., including maintainability, jurisdiction, limitation etc., which shall be decided by the trial Court in accordance with law.

¶93

vi) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the merits/demerits of the rival contentions.

¶94

Sd/(S.R.KRISHNA KUMAR) JUDGE

¶95

VM

¶96

List No.: 1 Sl No.: 2

Sri T B Nagaraju v. Sri Ganganarasaiah

Case brief

What is this about?

What did the court decide?

Sri T B Nagaraju v. Sri Ganganarasaiah

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

M/S Arsis Developers Private Limited Vs Sri Krishnappa

Smt Gowramma Vs Master N Karthik Kumar

Sri. Kurein Varghese Vs Sathish

Sree Bhavabarushi Padmapeetha Mahasamsthana(R), Vs Shri N Ganesh

Smt.M.Chaithra Vs Smt.Sarasakumari @ Sarasamma

N Chowda Reddy Vs Smt Nagamma