- 1 - HC-KAR NC: 2025:KHC:49576 CRP No. 193 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 193 OF 2020 BETWEEN: SMT J. SHAILA D/O LATE M. JAYARAMA REDDY W/O KUMAR G AGED ABOUT 43 YEARS R/AT NO. 150, II FLOOR, 6TH CROSS ROAD, SHASTRI NAGAR BANASHANKARI, BANGALORE - 560 028. …PETITIONER (BY SRI. G A SRIKANTE GOWDA.,ADVOCATE) AND: 1. SMT NIRMALA W/O LATE M. JAYARAMA REDDY AGED ABOUT 67 YEARS 2. SHRI. OMPRAKASH J., S/OLATE M. JAYARAMA REDDY AGED ABOUT 41 YEARS BOTH ARE R/AT PLOT NO. 204, IIND BRIGADE MAY FAIR APARTMENTS, NO.22, CAMBRIDGE LAYOUT ROAD, Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49576 CRP No. 193 of 2020 HALSOOR, BANGALORE - 560 020. 3. SMT. DR. REKHA D/O LATE M. JAYARAMA REDDY, W/O PRAKASH REDDY, AGED ABOUT 45 YEARS, R/AT NO. 1236, 24TH MAIN ROAD, 25TH CROSS, I SECTOR, H.S.R. LAYOUT, BANGALORE - 560 102. …RESPONDENTS (R1 TO R3 SERVED) THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER DATED 30.11.2019 PASSED ON IA IN OS NO.4671/2012 ON THE FILE OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE PARLTY ALLOWING THE IA FILED UNDER ORDER 23 R1(3) OF CPC., FOR WITHDRAWAL OF THE SUIT. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:49576 CRP No. 193 of 2020 ORAL ORDER Heard Sri. G. A. Srikante Gowda, learned counsel for the revision petitioner. 2. None appears for the respondents. 3. The plaintiff in O.S.No.4671/2012 is the revision petitioner, challenging the Order passed by the learned Trial Judge dismissing the application filed under Order XXIII Rule 1(3) of CPC by the plaintiff in toto. 4. Plaintiff is the daughter, who filed the suit against her mother, brother and sister for partition. That during the pendency of the suit, there is an assurance of settlement. Therefore, plaintiff filed an application seeking to withdraw the suit and in event there is no settlement to file a fresh suit. 5. The learned Trial Judge having heard the arguments of the parties, allowed the said application only in part in permitting the plaintiff to withdraw the suit and did not grant the liberty as prayed for in the application. Such an approach is incorrect is the submission made on behalf of the revision petitioner. - 4 - HC-KAR NC: 2025:KHC:49576 CRP No. 193 of 2020 6. In support of his arguments, Sri. G. A. Srikante Gowda, learned counsel for the revision petitioner places on record copy of the decision rendered in Aspen Buildtech Ltd., Vs. Epicuria Galley Pvt. Ltd.,1 the relevant paragraphs are paragraph Nos.21 and 22. He further submitted that there was no option for the trial Court to allow the application in part. It is his further submission that the application ought to have been rejected in toto or allowed in toto and therefore, the impugned order is incorrect. 7. Having heard Sri. G. A. Srikante Gowda, learned counsel for the revision petitioner, this Court perused the material on record meticulously. 8. On such perusal of material on record, it is just and necessary for this Court to refer the Order XXIII Rule 1(3) of CPC, which reads as under: '' (3) Where the Court is satisfied,— (a) that a suit must fail by reason of some formal defect, or 1 AIR 2020 DELHI 82 - 5 - HC-KAR NC: 2025:KHC:49576 CRP No. 193 of 2020 b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.'' 9. Taking note of the fact that only a part of the suit claim can be abandoned or whole against any one the parties or against the whole and wherever the Court is convinced that the suit should fail on formal defect, the suit can be permitted to be withdrawn with liberty to file a fresh suit retaining the cause of action. 10. In the case on hand, no such formal defect is noted. Under such circumstances, the trial Court ought to have rejected the application and allowed the plaintiff to continue with the suit. 11. Having not done so, allowing the application in part and permitting only for the withdrawal has resulted in impairing the rights of the plaintiff and therefore impugned order needs to be set aside. - 6 - HC-KAR NC: 2025:KHC:49576 CRP No. 193 of 2020 12. Having said so, the suit should be restored and it should be tried in accordance with law on merits by rejecting the application filed by the plaintiff. 13. Hence, following: ORDER i. Revision petition is allowed. ii. Impugned order dated 30.11.2019 in O.S.No.4671/2012 is set aside and matter is remitted to the trial Court for fresh disposal. iii. Plaintiff shall appear before the trial Court positively on 15.12.2025 and thereafter Court shall issue Court notice to the respondents and restore the suit and proceed with the suit in accordance with law. Sd/- (V SRISHANANDA) JUDGE RL List No.: 1 Sl No.: 32