- 1 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.626 OF 2025 (INJ) BETWEEN: 1. SMT.VENKATAMUNIYAMMA AGED ABOUT 64 YEARS W/O LATE SEENAPPA 2. SMT.LAKSHMAMMA, W/O LATE KRISHNAPPA, AGED ABOUT 67 YEARS, BOTH ARE RESIDING AT NANGALI VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK KOLAR DISTRICT-563132 …APPELLANTS (BY SRI N.S.SHESHADRI, ADVOCATE) AND: SRI.PRADEEP REDDY AGED ABOUT 44 YEARS S/O ANJANEYA REDDY, RESIDENT OF GADDUR VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK KOLAR DISTRICT-563132 …RESPONDENT (BY SRI VINOD REDDY, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 20.12.2024 PASSED IN RA No.32/2018 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MULBAGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.12.2017 PASSED IN O.S.No.360/2016 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, MULBAGAL. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri N.S.Sheshadri, learned counsel for the appellants on I.A No.2/2025 filed under Order XXIII Rule 1 of the Code of Civil Procedure. 2. In I.A No.2/2025 the following prayer is made. “For the reasons stated in the accompanying affidavit facts plaintiffs/appellants herein prays that this Hon’ble Court to withdraw the suit with the liberty to file proper suit for declaration in the interest of justice and equity.” 3. IA No.2/2025 is supported by the affidavit. The relevant portion of the affidavit supporting IA No.2/2025 is culled out hereunder for ready reference: “3. We respectfully submit that we have filed suit for permanent injunction based on the registered Sale Deed dated 27.01.1967, and further revenue entries as per our possession of 2 Acres in Sy.No.25 of N.Venkatapura Village, Bairkur Hobli, Mulbagal Taluk. The Defendant/Respondent though served with notice, intentionally has not appeared before the Hon'ble Trial Court and not contested the matter, however our suit is - 3 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 dismissed. As against the same we preferred first appeal and before 1st Appellate court the Defendant/Respondent herein appeared and filed statement of objections to our application filed under order 41 Rule 27 CPC, thereby he has taken a false contention that Sy.No.25 was re- assigned as Sy.No.52, and he is possession of 4 Acres in Old Sy.No.25, but failed to produce any documents before 1st Appellant Court also. We respectfully submit the 1st appellant court after hearing the arguments and objections of the Defendant/ Respondent herein, while dismissing the appeal in para No.23 of the judgment held as hereunder; "by applying the ration decided in the matter of Anathula Sudhakar case to facts of the case, it is crystal clear that, the title of the Plaintiff is under cloud or in dispute and therefore, necessary plea the Plaintiffs will have to file for declaration and consequential relief of permanent injunction. So far as, the_claim of the Defendant that the Plaintiffs are_not in possession of the suit schedule property_is to be ascertained only_during_course of trail of the suit would be filed by the Plaintiffs in future. In such circumstance the suit of the Plaintiffs for bare injunction is not maintainable" 4. We respectfully submit that we are illiterate and ignorant women. Our respective husbands are passed away from last 30 we have not got katha transferred in our names. We are ignorant of the process and as per our present advice we have ascertained some of the documents and came to know the false submission made by the Defendant/ - 4 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 Respondent herein. Even now the name of the our family member reflected in RTC extract in Sy. No. 25 (suit property). Since the Defendant without producing documents interfering with our possession and we have to secure other documents and need to file fresh case as stated in the application. In view of this ambiguity as observed by the 1st appellant court we are intended to file proper suit for declaration and other consequential relief. We will suffer injustice if this application not allowed. Hence, this application.” 4. In the plaint, cause of action paragraph reads as under: “7. That the cause of action for the suit arose on 20.11.2016 when the plaintiffs have cleaning the waste weed in the suit schedule property and at that time the defendants have illegally trespassed in to the suit schedule property and obstructed to the plaintiffs agricultural works in the suit property situated at N.Venkatapura village, Byrakur Hobli, Mulbagal Taluk, within the jurisdiction on this Hon’ble Court.” 5. The application is opposed by the respondent/defendant by filing written objections contending that if the plaint is sought to be withdrawn retaining the cause of action, plaintiffs have to establish before the Court that the suit should fail on technical grounds. - 5 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 6. In the affidavit paragraphs 3 and 4 referred to supra, there is no technical reason forthcoming on which the suit has failed. The suit has failed on the factual aspects of the matter. 7. When there is a factual finding recorded by two Courts, application under Order XXIII Rule 1 of the Code of Civil Procedure cannot be considered. 8. All that the Court can permit the plaintiffs is to withdraw the suit, but cannot permit to retain the ‘cause of action’ in the suit to be filed afresh. 9. To appreciate the said aspect of the matter Order XXIII Rule 1 of the Code of Civil Procedure is culled out hereunder: 1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. - 6 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a 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. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, - 7 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.] [1A. When transposition of defendants as plaintiffs may be permitted. - Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.] 10. In order to buttress the arguments addressed on behalf of the appellants, counsel for the appellants has placed reliance on the judgment of the Hon'ble Apex Court in the case of V.Rajendran and another vs. Annasamy Pandian (dead) through legal representatives Karthyauyani Natchiar reported in (2017)5 SCC 63. The relevant paragraph of the said judgment reads as under: “9. Order 23 Rule 1(3) CPC lays down the following grounds on which a Court may allow withdrawal of suit. It reads as under: “1. Withdrawal of suit or abandonment of part of claim.—(1)-(2) * * * (3) Where the Court is satisfied— (a) that a suit must fail by reason of some formal defect, or - 8 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a 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.” (emphasis supplied) As per Order 23 Rule 1(3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order 23 Rules 1(3)(a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order 23 Rule 1(3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses (a) or (b), that is, existence of a “formal defect” or “sufficient grounds”. The principle under Order 23 Rule 1(3) CPC is founded on public policy to prevent institution of suit again and again on the same cause of action. 10. In K.S.Bhoopathy v.Kokila[K.S.Bhoopathy v.Kokila, (2000) 5 SCC 458] , it has been held that 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 - 9 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 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. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order 23 Rule 1(3) CPC, the Court must be satisfied about the “formal defect” or “sufficient grounds”. “Formal defect” is a defect of form prescribed by the rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action, etc. “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. 11. In terms of Order 23 Rule 1(3)(b) where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit, the Court may permit the plaintiff to withdraw the suit. In interpretation of the words “sufficient grounds”, there are two views : one view is that these grounds in clause (b) must be “ejusdem generis” with those in clause (a), that is, it must be of the same nature as the ground in clause (a), that is, formal defect or at least analogous to them; and the other view was that the words “other sufficient grounds” in clause (b) should be read independent of the words a “formal defect” - 10 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 and clause (a). Court has been given a wider discretion to allow withdrawal from suit in the interest of justice in cases where such a prayer is not covered by clause (a). Since in the present case, we are only concerned with “formal defect” envisaged under clause (a) of Rule 1 sub- rule (3), we choose not to elaborate any further on the ground contemplated under clause (b), that is, “sufficient grounds”. 11. The reason for filing I.A.No.2/2025 is the observation made by the First Appellate Court in paragraph 23. Same is culled out hereunder: “23. By applying the ratio decidendi laid in the matter of Anathula Sudhakar case to facts of the case, it is crystal clear that, the title of the Plaintiffs is under cloud or in dispute and therefore, necessary plea the plaintiffs will have to file for declaration and consequential relief of permanent injunction. So far as, the claim of the defendant that the plaintiffs are not in possession of the suit schedule property is to be ascertained only during course of trial of the suit would be field by the plaintiffs in future. In such circumstance the suit of the plaintiffs for bare injunction is not maintainable.” 12. Taking note of these aspects of the matter, this Court is of the considered opinion that there is no technical or formal - 11 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 defect that has been pointed out so as to retain the ‘cause of action’ to suit. 13. Further, right to withdraw the appeal is always the right of the plaintiffs as they are dominus litigant in a suit. Hence, application can be allowed only with regard to plaintiffs to withdraw the suit and not to retain the same ‘cause of action’ in the intended fresh suit. 14. Accordingly in view of the foregoing discussion, the following: ORDER (i) I.A.No.2/2025 is allowed in part. (ii) Consequently, suit in O.S.No.360/2016 on the file of the Prl. Civil Judge and JMFC, Mulbagal, is permitted to be withdrawn. However, ‘cause of action’ to file fresh suit as is found in O.S.No.360/2016 is ordered to be not retained by the plaintiff. (iii) In view of the above appeal stands disposed of. - 12 - HC-KAR NC: 2025:KHC:36706 RSA No. 626 of 2025 (iv) If a fresh suit is filed, defendant is at liberty to canvass all possible defences, in accordance with law. (v) In view of the disposal of the appeal, all pending IAs are consigned to record. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 64