- 1 - HC-KAR NC: 2025:KHC:35112 R.F.A. No.1880/2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.1880/2023 (INJ) BETWEEN: 1. SRI. M.S. NAGABHUSHANA, S/O M.N. SATHAYANARAYANA RAO, AGED ABOUT 65 YEARS. 2. SMT. S. LALITHA, W/O M.S. NAGABHUSHANA, AGED ABOUT 56 YEARS. BOTH ARE R/AT NO.12 AND 13, 7TH CROSS, BALAJI NAGAR, MALLATHAHALLI EXTENSION, BENGALURU-560056. …APPELLANTS (BY SMT. VISMAYA D.A. ADV., FOR SRI. PARAMESHWAR N. HEGDE, ADV.,) AND: 1. M/S D.S. MAX PROPERTIES PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT NO.1854, 17TH MAIN, 30TH “B” CROSS, HBR LAYOUT, 1ST STAGE, 5TH BLOCK, BENGALURU-560043. REP. BY ITS BUSINESS MANAGER SRI. SHIVASHANKAR CHIKKERI. …RESPONDENT Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35112 R.F.A. No.1880/2023 (BY SRI. VINAY N, ADV., FOR SRI. NITYANAND M. BHAT, ADV.,) THIS RFA IS FILED UNDER SECTION 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 22.06.2023 PASSED BY THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-53), IN O.S.NO.6778/2016, ON THE SUIT FILED BY THE APPELLANT SEEKING FOR PERMANENT INJUNTION AND CONSEQUENTLY ALLOW THE REGULAR FIRST APPEAL BY ALLOWING THE SUIT OF THE APPELLANT, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT I.A. No.1/2025 is filed by the appellants seeking permission to withdraw the original suit in O.S. No.6778/2016, with liberty to institute a fresh comprehensive suit, if the law permits, in accordance with law. 2. The appellants had instituted O.S. No.6778/2016 seeking only a relief of permanent injunction against the respondent. The trial Court - 3 - HC-KAR NC: 2025:KHC:35112 R.F.A. No.1880/2023 dismissed the suit, holding that such a suit, without seeking declaration of title, was not maintainable. 3. Heard the learned counsel for the appellants and the learned counsel for the respondent. 4. Learned counsel for the appellants contends that the earlier omission to seek declaration relief was an inadvertent and unless liberty is granted, the appellants will be left without an effective remedy to vindicate their rights in the property. 5. The respondent has opposed the application, contending that permitting withdrawal at the appellate stage amounts to an abuse of process, since the appellants have already entered into a joint development agreement dated 28.02.2011 with the respondent and have also pursued a remedy before the Consumer Forum in complaint No.230/2014. It is argued that allowing withdrawal will prejudice the respondent and nullify the decree of dismissal. Reliance is placed on the judgment of - 4 - HC-KAR NC: 2025:KHC:35112 R.F.A. No.1880/2023 the Apex Court in the case of R. Rathinavel Chettiar and Another v. V. Sivaraman and Others1 (R. Rathinavel Chettiar). It is well settled that under Order XXIII Rule 1 CPC, withdrawal of a suit with liberty to institute a fresh suit can be permitted where the Court is satisfied that such liberty is necessary for the ends of justice and where refusal would cause irreparable prejudice to the parties seeking withdrawal. 6. In the present case, the Trial Court dismissed the suit solely on the ground that the appellants did not seek a relief of declaration. The defect goes to the very root of the maintainability of the suit, unless liberty is granted, the appellants will be permanently deprived of an opportunity to assert their rights by filing a properly constituted comprehensive suit. While the respondent may have deprived an advantage of the dismissal, such advantage cannot override the fundamental right of the appellants to have their claims adjudicated on merits in a 1 (1999) 4 SCC 89 - 5 - HC-KAR NC: 2025:KHC:35112 R.F.A. No.1880/2023 properly framed suit. Any prejudice to the respondent can be adequately addressed in the subsequent proceedings, where all contentions will remain open. 7. In these circumstances, this Court is satisfied that the request of the appellant is bonafide and permitting withdrawal with liberty would subserve the ends of justice. Accordingly, I.A. No.1/2025 is allowed. The appellants are permitted to withdraw O.S. No.6778/2016 with liberty to file a fresh comprehensive suit if so advised and if permissible in law. Sd/- __________________________ JUSTICE K.S. HEMALEKHA MD List No.: 1 Sl No.: 44