- 1 - HC-KAR NC: 2025:KHC:46240 WP No. 13548 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 13548 OF 2020 (GM-CPC) BETWEEN: 1. SRI G. NARAYANASWAY SINCE DEAD BY LRs. 1a. SMT. JAYAMMA AGED ABOUT 62 YEARS W/O LATE NARAYANASWAMY. 1b. SRI ASHOKA AGED ABOUT 38 YEARS S/O LATE NARAYANASWAMY. 1c. SMT. KAMALA AGED ABOUT 41 YEARS D/O LATE NARAYANASWAMY 1d. SRI RAMESHA AGED ABOUT 36 YEARS S/O LATE NARAYANSWAMY. 2. SRI G. CHIKKANNA AGED ABOUT 58 YEARS S/O LATE GUNDAPPA. ALL THE PETITIONERS ARE R/AT BHATRAMARENAHALLI VILLAGE CHANNARAYAPATNA HOBLI DEVANAHALLI TALUK BENGALURU RURAL DISTRICT - 562 129. …PETITIONERS (BY SRI VIVEK B.N, ADV., FOR SRI ABHINAV RAMANAND A, ADV.) Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:46240 WP No. 13548 of 2020 AND: 1. SMT. AKKAYYAMMA AGED ABOUT 70 YEARS D/O URABAGILU APPAIAH @ APPAIAH RESIDING AT DODDAKURUBARAHALLI VILLAGE, CHANNARAYAPATNA HOBLI DEVANAHALLI TALUK BENGALURU RURAL DISTRICT - 562 129. 2. SRI SONNAPPA AGED ABOUT 65 YEARS H/O LATE LAKSHMAMMA. 3. SRI KRISHNAMURTHY AGED ABOUT 40 YEARS S/O SONNAPPA. 4. SRI RAJU AGED ABOUT 37 YEARS S/O SONNAPPA. 5. SRI PRAKASH AGED ABOUT 35 YEARS S/O SONAPPA. 6. SRI MUNEGOWDA AGED ABOUT 33 YEARS S/O SONNAPPA. RESPONDENT NOs. 2 TO 6 ARE R/AT MYLNAHALLI VILLAGE JALA HOBLI B K HALLI POST BENGALURU EAST TALUK. 7. SRI MUNIYAPPA AGED ABOUT 92 YEARS H/O LATE PILLAMMA. 8. SRI BYREGOWDA AGED ABOUT 46 YEARS S/O MUNIYAPPA. BOTH RESPONDENT NOs. 7 & 8 ARE R/AT NO.43 IM ROAD - 3 - HC-KAR NC: 2025:KHC:46240 WP No. 13548 of 2020 HORAMAVU AGARA BENGALURU EAST TALUK - 560 043. 9. SMT. MEENAKSHI AGED ABOUT 43 YEARS W/O KRISHNAPPA D/O MUNIYAPPA R/O KARAHALLI VILLAGE AND POST KUNDANA HOBLI DEVNAHALLI TALUK BENGALURU - 560 074. 10. SMT. VINODAMMA AGED ABOUT 40 YEARS W/O KRISHNAPPA D/O MUNIYAPPA R/O DOGARANAYAKANAHALLI DEVARAMALLU HOBLI SIDDLAGHATTA TALUK CHIKKABALLAPUR - 562 105. …RESPONDENTS (V/O DTD 20.07.2021, NOTICE TO R-2 TO R-10 IS D/W; V/O DTD 09.08.2021 SERVICE FO NOTICE TO R-1 - AKKAYYAMMA IS H/S & PLACED EXPARTE) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DD 12.03.2020 GRANTING LIBERTY TO FILE A FRESH SUIT BY ALLOWING IA NO.7 IN OS NO.438/2013 VIDE ANNX-E TO THE PRESENT WRIT PETITION PASSED BY THE SENIOR CIVIL JUDGE, BENGALURU ALLOWING THE PRESENT W.P. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. This writ petition under Article 227 of the Constitution is filed with a prayer to set aside the order dated 12.03.2020 - 4 - HC-KAR NC: 2025:KHC:46240 WP No. 13548 of 2020 passed on IA.no.7 in O.S.No.438/2013 by the Court of Senior Civil Judge & JMFC at Devanahalli, Bengaluru Rural District. 2. Heard the learned Counsel for the petitioner. Respondents who are served, have remained unrepresented before this Court. 3. Respondent no.1 herein had filed O.S.No.438/2013 before the Court of Senior Civil Judge & JMFC, Devanahalli, seeking the relief of partition and separate possession of the suit schedule property. The petitioner herein who was arrayed as defendant no.4 in O.S.No.438/2013 had filed his written statement on 09.04.2014 and had opposed the suit claim. Subsequently, on 23.09.2019, IA.no.7 was filed on behalf of the plaintiff in O.S.No.438/2013 to permit the plaintiff to withdraw the suit and to file a fresh suit. The said application was also opposed by the petitioner herein by filing objections. The Trial Court vide the order impugned dated 12.03.2020 allowed IA.no.7 and being aggrieved by the same, petitioner is before this Court. - 5 - HC-KAR NC: 2025:KHC:46240 WP No. 13548 of 2020 4. Learned Counsel for the petitioner submits that though the Trial Court has heard IA.no.7 on 08.11.2019 itself, in the order impugned, it is mentioned as if IA.no.7 was heard on the date of order impugned. He submits that the order impugned is bereft of any reasons, and therefore, on these two short grounds, the order impugned has to be set aside. 5. IA.no.7 was filed under Order XXIII Rule 1 read with Section 151 CPC on behalf of the plaintiff on 23.09.2019 and the order sheet of the Trial Court would go to show that the objections to the said application was filed by defendant no.4 on 08.11.2019 and on the very same day, arguments were heard on IA.no.7 and the matter was adjourned for passing orders on IA.no.7. Thereafter, the matter was listed before the Trial Court on 11.12.2019 and 07.02.2020, and on both the said dates, the matter was adjourned for orders on IA.no.7. On 12.03.2020, when the matter had come up before the Trial Court, the following order was passed which is impugned in this writ petition. "Advocate for plaintiffs filed application U/o. 23 Rule 1 R/w. Sec. 151 of C.P.C. and prays to withdraw the above suit with liberty to file fresh suit. - 6 - HC-KAR NC: 2025:KHC:46240 WP No. 13548 of 2020 Advocate for defendant no.4 filed objections to the above application. Perused and heard. Plaintiff has made out sufficient grounds to allow the application. Hence application is allowed. Plaintiff is permitted to withdraw the suit with liberty to file fresh suit as prayed in the application. Hence case is closed." 6. From a reading of the aforesaid order, prima facie it appears that arguments on IA.no.7 was heard on 12.03.2020, whereas the order sheet of the Trial Court reflects that arguments on IA.no.7 was heard much prior to the date of the order impugned. 7. Order XXIII Rule 1(3) CPC provides that where a court is satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit over the subject matter of the suit or part of the claim, then the court on such terms may grant permission to the plaintiff to withdraw the said suit with liberty to institute a fresh suit. 8. In the case on hand, from a reading of the order impugned, it is apparent that the Trial Court has not assigned - 7 - HC-KAR NC: 2025:KHC:46240 WP No. 13548 of 2020 any reason for permitting the plaintiff to withdraw the suit with liberty to file a fresh suit. From a reading of sub-rule (3) of Rule 1 of Order 23, it is apparent that the court is required to satisfy itself that there are sufficient grounds for allowing the plaintiff to withdraw the suit and file a fresh suit and it is only then the permission as provided under sub-rule (3) of Rule 1 of Order 23, can be granted. The order impugned does not reflect any such reasoning, and therefore, I am of the opinion that the order impugned cannot be sustained. Accordingly, the following order: 9. The writ petition is allowed. The order impugned dated 12.03.2020 passed on IA.no.7 in O.S.No.438/2013 is set aside, and the Trial Court is directed to consider IA.no.7 afresh and dispose of IA.no.7 on merits after hearing all the parties, as expeditiously as possible, but not later than the period of two months from the date of receipt of the certified copy of this order. Sd/- (S VISHWAJITH SHETTY) JUDGE KK