- 1 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 7947 OF 2020 (GM-CPC) BETWEEN: H.S. NANDEESHA S/O SHIVARAJEGOWDA AGED ABOUT 37 YEARS, R/O H. HINDALAHALLI VILLAGE, HALLIMYSURU HOBLI - 573 210 HOLENARSIPURA TALUK HASSAN DISTRICT. …PETITIONER (BY SRI S.V. PRAKASH, ADVOCATE) AND: 1. DEVAMMA W/O. LATE KARIGOWDA AGED ABOUT 82 YEARS, R/O MUNDAGODU KYATHANAHALLI KASABA HOBLI - 573 102 ARKALAGUDU TALUK HASSAN DISTRICT 2. DYAVEGOWDA S/O LATE MARIGOWDA @ KENGEGOWDA AGED ABOUT 72 YEARS, R/O H. HINDALAHALLI VILLAGE, HALLIMYSURU HOBLI - 573 210 Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 HOLDNARSIPURA TALUK HASSAN DISTRICT 3. KALAMMA W/O. NANJUNDEGOWDA AGED ABOUT 70 YEARS, R/O NAGLAPURA VILLAGE KASABA HOBLI - 573 211 HOLENARSIPURA TALUK HASSAN DISTRICT 4. RAMEGOWDA S/O LATE MARIGOWDA @ KENGEGOWDA AGED ABOUT 70 YEARS, MALALIHOSURU VILLAGE, SHANTHIGRAMA HOBLI - 573 201 HASSAN TALUK AND DISTRICT 5. SWAMYGOWDA S/O LATE MARIGOWDA @ KENGEGOWDA AGED ABOUT 66 YEARS, GOLLARAKOPPALU VILLAGE, HALLIMYSURU HOBLI - 573 210 HOLENARASIPURA TALUK HASSAN DISTRICT 6. JAVARAMMA D/O LATE KULLEGOWDA @ DYAVEGOWDA W/O. KADEGOWDA AGED ABOTU 65 YEARS, R/O H. HINDALAHALLI VILLAGE, HALLIMYSURU HOBLI - 573 210 HOLENARSIPURA TALUK HASSAN DISTRICT 7. SHIVARAJEGOWDA S/O LATE NINGEGOWDA AGED ABOUT 68 YEARS, - 3 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 R/O H. HINDALAHALLI VILLAGE, HALLIMYSURU HOBLI - 573 210 HOLENARSIPURA TALUK HASSAN DISTRICT 8. MARIGOWDA @ ANNAYYA S/O NINGEGOWDA AGED ABOUT 66 YEARS, R/O H. HINDALAHALLI VILLAGE, HALLIMYSURU HOBLI - 573 210 HOLENARSIPURA TALUK HASSAN DISTRICT 9. RAJAMMA D/O NAGARAJEGOWDA AGED ABOUT 64 YEARS HONNAVALLI VILLAGE, KASABA HOBLI - 573 102 ARAKALAGUDU TALUK HASSAN DISTRICT 10. KALEGOWDA @ KRISHNEGOWDA S/O NINGEGOWDA AGED ABOUT 62 YEARS, R/O H. HINDALAHALLI VILLAGE, HALLIMYSURU HOBLI - 573 210 HOLENARSIPURA TALUK HASSAN DISTRICT 11. GOWRAMMA @ SAROJAMMA D/O NINGEGOWDA AGED ABOUT 60 YEARS, R/O H. HINDALAHALLI VILLAGE, HALLIMYSURU HOBLI - 573 210 HOLENARSIPURA TALUK HASSAN DISTRICT - 4 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 12. RATHNA H.S., D/O SHIVARAJEGOWDA AGED ABOUT 37 YEARS, R/O H. HINDALAHALLI VILLAGE, HALLIMYSURU HOBLI - 573 210 HOLENARASIPURA TALUK HASSAN DISTRICT PRESENTLY RESIDENT OF CHITTANAHALLI EXTENSION HALLIMYSURU HOBLI - 573 210 HOLENARSIPURA TALUK HASSAN DISTRICT …RESPONDENTS (BY SRI GANESHA R., ADVOCATE FOR R12 (ABSENT); R1 SERVICE OFNOTICE IS HELD SUFFICIENT VIDE ORDER DATED 19.04.2023; R2, R3, R5 TO R11 ARE SERVED; R4 SERVICE OF NOTICE IS HELD SUFFICIENT VIDE ORDER DATED 13.09.2023) THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 07.02.2020 PASSED BY THE COURT OF LEARNED ADDITIONAL CIVIL JUDGE AND JMFC, HOLENARSIPURA IN O.S.NO.270/2018 ON I.A.NO.IV FILED BY THE PETITIONER / PLAINTIFF UNDER ORDER XXIII RULE 1 OF CODE OF CIVIL PROCEDURE, 1908 SEEKING THE RELIEF OF WITHDRAWAL OF THE SUIT WITH A PERMISSION TO FILE A FRESH SUIT ON SAME CAUSE OF ACTION PRODUCED AS PER ANNEXURE-F TO THE WRIT PETITION AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 CORAM: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following reliefs, "a) Issue a writ in the nature of certiorari and quash the order dated 07.02.2020 passed by the court of learned Additional Civil Judge and JMFC, Holenarsipura in O.S.No.270/2018 on I.A.No.IV filed by the petitioner/plaintiff under Order XXIII Rule 1 of Code of Civil Procedure, 1908 seeking the relief of withdrawal of the suit with a permission to file a fresh suit on same cause of action produced as per Annexure -F to the writ petition; b) Issue any other appropriate with or order or direction as this Hon'ble Court deems it appropriate in the admitted facts and circumstances of the case in the interest of justice; c) Pass such other suitable orders as this Hon'ble court deems it appropriate in the attendant circumstances and facts of the case; d) Award the cost of this proceeding." 2. Heard. 3. Sri S.V.Prakash, learned counsel appearing for the petitioner submits that the petitioner has filed a suit in O.S.No.270/2018 for partition and separate possession. It is - 6 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 submitted that during the pendency of the said suit, the petitioner- plaintiff filed an application in Order XXIII Rule 1 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking leave of the Court to withdraw the suit with liberty to file a fresh suit on the same cause of action on the ground that there was formal defect noticed by the petitioner. It is further submitted that in the affidavit filed accompanying the application, the defect are pointed out as being with regard to the non-inclusion of the certain properties of the joint family in the suit and not arraying the necessary parties. 4. It is also submitted that the Trial Court proceeded to reject the said application by the impugned order on the ground that the petitioner ought to have filed an application for amendment in the present suit and also for the impleadment. The findings of the Trial Court in the impugned order is contrary to the Order XXIII Rule 1 of CPC. It is contended that defendants though denied the averments in the plaint; they have consented for allowing the application on cost. Without considering any of the aspects, the application came to be rejected. 5. Respondents served and unrepresented. - 7 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 6. Having heard learned counsel for the petitioner and after considering the material on record, it is noticed that the petitioner has filed O.S.No.270/2018 and same is pending on the file of Additional Civil Judge and JMFC, Holenarasipura. Said suit is for partition and separate possession. 7. The material on record indicates that the respondents have filed a written statement denying the share in the suit schedule property on the ground that the partition has already taken place before 90 years. They also specifically pleaded in the written statement that the genealogy relied on by the petitioner is incorrect. Considering these aspects, the petitioner moved an application under Order XXIII Rule 1 of CPC seeking leave of the court to withdraw the suit with liberty to file a fresh suit on the same cause of action after curing the formal defects noticed by him. The said application is accompanied by the affidavit of the petitioner. The said affidavit clearly indicates that the petitioner has failed to implead other necessary parties in the suit and also claims that certain other properties were not included in the suit. - 8 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 8. Considering the averments made in the affidavit and I am of the considered view that the interest of justice would be met, if the petitioner is permitted to withdraw the suit as there appears to be some formal defects in the plaint of the petitioner by permitting him to present a fresh suit on the same cause of action. For the aforementioned reasons, I am of the considered view that Trial Court committed an error in rejecting the application on a hyper-technical ground and ultimately the petitioner is a dominus litis and he has pointed out that there are some formal defects in the plaint, which bound to fail on said defects. Considering these aspects, the petition deserves to be allowed. For the aforementioned reasons, I proceed to pass the following: ORDER i) The writ petition is allowed. ii) The order dated 07.02.2020 in O.S.No.270/2018 on I.A.No.IV on the file of learned Additional Civil Judge and JMFC, Holenarsipura is set aside. - 9 - HC-KAR NC: 2025:KHC:20871 WP No. 7947 of 2020 iii) I.A.No.IV filed by the petitioner/plaintiff under Order XXIII Rule 1 of CPC is allowed. Petitioner is permitted to withdraw the suit with the liberty to file a fresh suit on the same cause of action. SD/- (VIJAYKUMAR A. PATIL) JUDGE CR List No.: 1 Sl No.: 30