- 1 - NC: 2025:KHC:13407 WP No. 34416 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 34416 OF 2024 (GM-CPC) BETWEEN: SRI MUNIKRISHNAPPA S/O LATE RAMAPPA AGED ABOUT 55 YEARS R/AT YALAVAGULI VILLAGE TEKAL HOBLI, MALUR TLAUK KOLAR DISTRICT-563137. …PETITIONER (BY SRI. RAMAIAH GOWDA L M., ADVOCATE) AND: 1. SRI M SAMPANGI S/O LATE MUNIRAMAIAH AGE ABOUT 52 YEARS 2. SRI Y S HARISH S/O C SRINIVAS AGED ABOUT 42 YEARS BOTH ARE R/AT YALAVAGULLI VILLAGE TEKAL HOBLI, MALUR TALUK KOLAR DISTRICT 563137. …RESPONDENTS (BY SRI. NISAR SAB., ADVOCATE FOR R1: NOTICE TO R2 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH Digitally signed by HEMALATHA A Location: HIGH COURTOF KARNATAKA - 2 - NC: 2025:KHC:13407 WP No. 34416 of 2024 THE ORDER DATED:05.11.2024 PASSED BY THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT KOLAR ON IA.NO.VII IN SUIT O.S.NO.2/2021, PRODUCED AS ANNEXURE-G AND ALLOW THIS WRIT PETITION AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL ORDER This writ petition is filed by defendant No.1 under Article 227 of the Constitution of India, challenging the order dated passed on IA No.VII in O.S.No.2/2021 by the I Additional District and Sessions Judge, Kolar, whereby the application filed by the plaintiff under Order XXIII Rules 1 and 2 has been allowed. 2. The respondent herein filed a petition under Section 276 of the Indian Succession Act, 1925, seeking for a probate and succession certificate in favour of the petitioner in respect of the suit schedule property. On service of notice, petitioner herein filed an objection disputing the Will. On the basis of the pleadings of the parties, issues have been framed. Thereafter, parties - 3 - NC: 2025:KHC:13407 WP No. 34416 of 2024 have adduced their evidence. At that stage, the respondent herein filed an application – IA No.7 under Order 23 Rules 1 and 2 of CPC, seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The petitioner herein filed an objection contending that he has no objection to allow the application. Accordingly, the trial court allowed the application. 3. The only contention raised by the petitioner herein is that the prayer sought in the application is seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. For that, the petitioner herein filed an objection stating that he has no objection to grant permission to withdraw the suit as provided under the statutes, however, the plaintiff has no right to seek relief of liberty to file a fresh suit on the same cause of action. 4. He further contended that he may be permitted to withdraw the suit with liberty to file a fresh suit, but, he - 4 - NC: 2025:KHC:13407 WP No. 34416 of 2024 cannot be permitted to file a suit for declaration. Even though in the body of the order, the trial court has referred to the pleadings of the petitioner that he sought for filing the suit for declaration, but the relief granted by the trial court is extracted below: “11. As per the dictum and the prevailing provision it is the duty of the Court to be satisfied about the existence of "formal defect" or "sufficient grounds" before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the "formal defect” or "sufficient grounds", such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. In the instant case, the plaintiff is seeking probate in respect of suit schedule property by virtue of a Will, but the said property is already sold by defendant No.1 in favour of defendant No.2. The plaintiff now intends to file a suit seeking necessary declaration in respect of the disputed property. As the issuance of probate in the present suit is seriously reputed by the defendant No.1, the plaintiff is intending to withdraw the suit and seeking leave to file fresh - 5 - NC: 2025:KHC:13407 WP No. 34416 of 2024 suit on the same cause of action. If the plaintiff is permitted to file fresh suit on the same cause of action, it would not in any way prejudice the defendants. Further, in a suit for probate, this court cannot adjudicate the title of the parties. Therefore, the claim of plaintiff seeking liberty to file fresh suit on the same cause of action deserves consideration. There are sufficient grounds made out by the plaintiff in presenting the application. The defence raised by the defendant No.1 is untenable. Consequently I hold point No.1 for consideration in the Affirmative.” 5. In the impugned order, the trial court granted relief to file a fresh suit on the same cause of action. There is no relief granted in the impugned order that he is permitted to seek a declaration. Therefore, in a suit filed pursuant to the order passed by the trial court, liberty is also reserved to the petitioner to raise the grounds which are available, in accordance with law. 6. With the above observations, the writ petition stands disposed of. - 6 - NC: 2025:KHC:13407 WP No. 34416 of 2024 7. In view of disposal of the petition, all pending applications stand disposed of. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM LIST NO.: 1 SL NO.: 68