- 1 - HC-KAR NC: 2025:KHC:38122 RSA No. 1999 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1999 OF 2023 (INJ) BETWEEN: SRI. N. JAGADISH KUMAR S/O LATE H. NARAYANA GOWDA AGED ABOUT 57 YEARS, RESIDING AT NO.1577, NEAR VENAKTESHWARA THEATRE, M.B. ROAD, KOLAR - 563 101. &APPELLANT (BY SRI. C. SHANKAR REDDY, ADVOCATE) AND: 1. SRI. N JAYARAMA REDDY S/O LATE H NARAYANA GOWDA AGED ABOUT 62 YEARS RESIDING AT 1ST FLOOR NARAYANA GOWDA COMPOUND, VENKATESHWARA THEATRE, M.B. ROAD, KOLAR - 563 101. 2. SRI. N RAMESH KUMAR S/O LATE NARAYANA GOWDA AGED ABOUT 64 YEARS RESIDENT OF 2ND MAIN ROAD SRI BYRE GOWDA NAGARA BANGARPET ROAD, KOLAR - 563 101 &RESPONDENTS (BY SRI. S. SRINIVASAN, ADVOCATE FOR C/R1) R Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:38122 RSA No. 1999 of 2023 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.07.2023 PASSED IN RA NO.126/2021 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, KOLAR., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.10.2021 PASSED IN OS NO.158/2011 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, KOLAR. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard on I.A.No.2/2023. Application prayer reads as under : "That for the reasons sworn to in the accompanying affidavit the appellants above named pray that this honourable court be pleased to permit the appellant to withdraw the plaint and file a fresh suit for declaration and allied reliefs on the same cause of action in respect of the same properties and dispose of the above appeal on merits in accordance with law in the interest of justice and equity." - 3 - HC-KAR NC: 2025:KHC:38122 RSA No. 1999 of 2023 2. Counsel for the respondent Sri. S. Srinivasan opposes the application in terms of the written objections. 3. Having heard the parties on I.A. No.2/2023, it is crystal clear that both the Courts have dismissed the suit of the plaintiff on the ground that there is a cloud on the title of the plaintiff. 4. In order to overcome said situation, I.A.No.2/2023 is filed under Order XXIII Rule 1 of the Code of Civil Procedure. 5. Permission to withdraw the plaint is permissible under Order XXIII Rule 1 of the Code of Civil Procedure. However, it is the discretion of the Court to retain the cause of action if the suit were to fail only on technical or formal defect in the suit. 6. In the case on hand, there is no technical or formal defect in the suit filed by the plaintiff. - 4 - HC-KAR NC: 2025:KHC:38122 RSA No. 1999 of 2023 7. The object behind enacting Order XXIII Rule 1 of the Code of Civil Procedure, is to protect the genuine plaintiff where on account of the technical or formal defect, his rights would be put to jeopardy. 8. In the case on hand, when the written statement came to be filed, wherein there is a specific averment in the written statement in the defence of the defendants that plaintiff is neither the owner of the property nor his possession is lawful in respect of the suit property as alleged, plaintiff should have realized the factual aspect and should have taken necessary steps in the Trial Court itself to cure the said defects, if any. 9. Having failed to do so, plaintiff suffered an order of decree before the Trial Court. There is a specific finding recorded by the learned Trial Judge while dismissing the suit of the plaintiff that the plaintiff's possession is not lawful and should have prayed for the relief of declaration. - 5 - HC-KAR NC: 2025:KHC:38122 RSA No. 1999 of 2023 10. Despite the same, plaintiff chose to file the appeal questioning the finding recorded by the Trial Court in the appeal in R.A. No.126/2021. 11. Since an appeal is a continuation of the suit, plaintiff ought to have claimed the relief of declaration at least before the First Appellate Court in the pending appeal. 12. But for the reasons best known to the plaintiff, he did not choose to do so even before the First Appellate Court. Instead, having suffered the decree of dismissal of the appeal, appellant has preferred the present appeal. 13. I.A. No.2/2023 is filed before this Court seeking withdrawal of the plaint and retaining the cause of action for a fresh suit as an afterthought. 14. Needless to emphasize that rights of the parties have been crystallized by the judgment of the Trial Court as well as the First Appellate Court in recording a categorical finding as to the factual aspects of the matter - 6 - HC-KAR NC: 2025:KHC:38122 RSA No. 1999 of 2023 and both the Courts have concurrently held that without seeking the relief of declaration having regard to the cloud on the title of the plaintiff in respect of the suit property, at this belated stage, the cause of action cannot be retained by allowing I.A.No.2/2023. 15. Having said thus, it is always the right of the plaintiff to withdraw the plaintiff as he is the master of the suit. 16. Hence, IA No.2/2023 needs to be allowed partly by allowing the plaintiff to withdraw the suit but not retaining the cause of action. 17. Hence, the following : ORDER (i) I.A.No.2/2023 is allowed in part. (ii) Consequently, Plaintiff is permitted to withdraw the plaint. As such, suit stands dismissed as withdrawn. - 7 - HC-KAR NC: 2025:KHC:38122 RSA No. 1999 of 2023 (iii) It is made clear that this Court has not retained cause of action at the inception of the suit and if any other right is available to the plaintiff, he may pursue the same in accordance with law. (iv) If any such fresh suit is filed, it is needless to emphasise that the defendants can oppose the said suit by canvassing all possible defenses in accordance with law. (v) No order as to cost. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 30 CT: BHK