- 1 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 36657 OF 2025 (GM-CPC) BETWEEN: 1. SMT RASHMI WIFE OF LATE H M SHAM, AGED ABOUT 49 YEARS, RESIDING AT RAVINDRA NAGAR, 3RD CROSS, HASSAN PIN 573201 2. SRI. JAYDEV S/O. LATE H M SHAM, AGED ABOUT 20 YEARS, RESIDING AT RAVINDRA NAGAR, 3RD CROSS, HASSAN - 573201 …PETITIONERS (BY SRI. M.S. VENUGOPALA, ADVOCATE) AND: 1. SMT. H.M. SUMA D/O LATE H R. MAHADEV, WIFE OF K P DODDEGOWDA, AGED ABOUT 45 YEARS, RESIDING AT NO.37, CHANDANA, 2ND CROSS, AHOK NAGAR, TUMAKURU CITY - 563 103, PRESENTLY RESIDING AT 11TH CROSS, WARD NO.52, SAMRUDHI NILAYA, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 MAHALAKSHMI NAGAR, TUMAKURU - 572 102. 2. SMT H M CHAMPA D/O. H R MAHADEV, WIFE OF NOEL GILBERT, AGED ABOUT 43 YEARS, AS PER PLAINT SHARAF OF DG DEIRA, CITY CENTER, DUBAI. P.O BOX NO.31064. PRESENTLY RESIDING AT DONATA MARVEL APARTMENT, SUNDARANAGARA, GOKULA EXTENSION, MATHIKERE, BENGALURU - 560 054. …RESPONDENTS (BY SRI. SRINIVAS V.,ADVOCATE) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, HASSAN IN OS NO.173/2022 DATED 10.09.2025 VIDE ANNEXURE-L, PASSED ON IA NO.12 FILED BY THE RESPONDENT NO.1 UNDER ORDER 23 RULE 1 (3) OF CODE OF CIVIL PROCEDURE 1908 AND REJECT THE APPLICATION IA NO.12 FILED BY THE RESPONDENT NO.1 IN OS NO.173/2022 UNDER ORDER 23 RULE 1 (3) OF CODE OF CIVIL PROCEDURE 1908 VIDE ANNEXURE-J AND ETC., - 3 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the defendant in O.S.No.173/2022 is directed against the impugned order dated 10.09.2025 whereby the application I.A.No.12 filed by the respondent - plaintiff under Order XXIII Rule 1(3) of Code of Civil Procedure, 1908 (hereinafter referred to as CPC for short) for permission to withdraw the suit with liberty to file a fresh suit was allowed by the trial Court. 2. Heard the learned counsel for the petitioners and respondents and perused the materials placed on record. 3. A perusal of the material on record would indicate that the respondent-plaintiff instituted a suit against the petitioners-defendants for partition and separate possession of her alleged share in the suit schedule immovable properties and for other reliefs. On - 4 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 16.12.2024, the first respondent-plaintiff filed an application seeking amendment of the plaint by incorporating paragraphs 5A to 5F and additional prayers in the suit, which was rejected by the trial Court vide order dated 04.04.2025. Subsequently, having regard to rejection of the amendment application, the respondent – plaintiff filed the instant application for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The said application having been opposed by the petitioners, the trial Court proceeded to pass the impugned order allowing the application, aggrieved by which, the petitioners are before this court by way of the present petition. 4. Learned counsel for the petitioners submits that having suffered an order of rejection of the amendment application, the respondent –plaintiff was not entitled to seek withdrawal of the suit with liberty to file a fresh suit on the same cause of action, especially when there was no formal defect in the original plaint which warranted such - 5 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 leave/permission to be granted in favour of the respondent - plaintiff. It was also submitted that the trial Court failed to appreciate that except stating that the respondent – plaintiff had suffered an order rejecting the amendment application, neither valid nor sufficient ground has been made out by the respondent to invoke the provisions contained in Order XXIII Rule 1(3) of CPC and seek permission to withdraw the plaint with liberty to file a fresh suit. It was therefore submitted that the impugned order passed by the trial Court deserves to be set aside and the application I.A.No. 12 filed by the first respondent was liable to be dismissed. In support of his submissions, he places reliance upon the judgment of the Hon’ble Apex Court in the case of V. Rajendran and another Vs. Annasamy Pandian (dead) through LRs reported in (2017) 5 SCC 63. 5. Per contra learned counsel for the respondent – plaintiff would support the impugned order and submit - 6 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 that there is no merit in the petition and the same is liable to be dismissed. 6. A perusal of the material on record would indicate that in the aforesaid suit, the respondent – plaintiff initially did not put forth relevant pleadings which he subsequently sought to incorporate by way of amendment. However, since the said amendment application was rejected by the trial Court, the respondent – plaintiff was constrained to file the present application so as to enable her to put forth, plead and prove her case on merits and as such, it cannot be said that the reasons assigned by the respondent- plaintiff in the application seeking leave Under Order XXIII Rule 1(3) of CPC did not constitute valid or sufficient cause/grounds for permission to grant leave to file a fresh suit on the same cause of action as contemplated under Order XXIII Rule 1(3) of CPC. In fact the trial Court has correctly and properly considered the rival contentions and has come to the correct conclusion that the respondent -plaintiff had made - 7 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 out valid and sufficient cause/ground for grant of permission/leave to withdraw the suit with liberty to file a fresh suit on the same cause of action by holding as under: “ORDERS ON I.A.NO.XII FILED UNDER ORDER 23 RULE 1(3) and Section 151 OF C.P.C: The applicant/plaintiff has filed this application and prays to permit to withdraw her suit and to file a fresh suit on the same cause of action. 2. 2. The applicant/plaintiff has sworn to an affidavit in support of her application and stated that, she has filed this suit seeking the relief of partition and separate possession and initially her suit was filed by previous counsel and during the pendency of the suit, her earlier counsel retired from her case and hence, she represented through another counsel and thereafter she came to know that there is no recitals in the plaint regarding the fraud played and created the partition deed dated: 24.05.2010. As such, she filed an application for amendment of her plaint as per I.A No.11, but the said application was dismissed on 24.04.2025. As such, it is submitted that there is a serious defects in the suit and if she continuous in the suit, certainly she will not going to succeed in the suit and accordingly, she prays to permit her to withdraw the suit and file a fresh suit on the same cause of action. 3. On the other hand, the learned counsel for the legal heirs of defendant No.2 has filed his objection to the said application and contended that, the said application is not maintainable. It is specifically contended that, the said application is a baseless application and the plaintiff herself has admitted that, the plaint filed by herself does not contain the vital aspects concerning the contention - 8 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 of fraud, but the said contention of the plaintiff cannot be accepted at all. 4. Further, it is contended that, the plaintiff should have been cautious while filing the suit, but the plaintiff has not come up with clean hands and when the application filed by the plaintiff under Order 6 Rule 17 which was dismissed by this court, she should have preferred an appeal against the said order, but in spite of it, she filed this application seeking the withdrawal of the suit by reserving her right to file a fresh suit on the same cause of action which is not maintainable. Further, it is contended that, the applicant has filed this application belatedly nearly after lapse of 12 years and the plaintiff recently came up with the contention of alleging fraud, played and created partition deed dated: 24.05.2010 and hence, it is contended that, there is a serious question of law involves and hence, it is contended that, the applicant cannot be permitted to withdraw the suit and to file a fresh suit on the same cause of action and accordingly, it is prayed to dismiss the application. 5. Heard the arguments on both sides and perused the records. The learned counsel for the plaintiff relied upon the following citations: 1. 2016 (3) KCCR 2242, between Ishwar V/s Irappa 2. Civil Appeal No.861/2017, between V. Rajendran and another V/s Annasamy Pandian (D) THR. LRS Karthyayani Natchar. 3. 2018 (1) KCCR 299, between Chikkamadaiah V/s Smt. Ningamma and others. 4. C.R.P. No. 100111/2016, between Khatunabi and others V/s Imam Husen. 5. 2022 (2) KCCR 1774 between Smt. Sonubai V/s State of Karnataka and others. 6. 2023 (1) KCCR 746 (DB), between Smt. Sujatha Vijay and another V/s Stat of Karnataka and others. - 9 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 6. Now the points that arise for my consideration are as follows: 1) Whether the plaintiff has made out grounds to withdraw the suit? 4) What order? 7. My findings on the above points are as follows: Point No.1: In the Affirmative Point No.2: As per the final order for the following: R E A S O N S 8. Point No.1: I have perused the entire materials available on record and on perusal of the same it is noticed that she has filed this suit seeking partition and separate possession. On perusal of the records it is noticed that the applicant has come up with IA No. 11 filed under Order 6 Rule 17 of CPC and for the first time the plaintiff intended to amend her plaint and intended to insert some extra pleadings regarding the fraud, played and obtained partition deed 24.05.2010. The plaintiff initially filed the suit before the Civil Judge and JMFC in O.S.No.473/2013 and on the point of pecuniary jurisdiction the plaint was returned to the plaintiff to file before the proper jurisdictional court. Accordingly, the plaintiff has filed this suit before this court in the year 2022. 9. The I.A.No.11 was filed by the plaintiff on 16.12.2024 and the same was rejected by this court on 04.04.2025. Accordingly, the plaintiff has come up with this application seeking permission to withdraw the suit, since there is a formal defects in the suit and if she continued, certainly she will not success in this suit and accordingly, she prays to permit her to withdraw the suit and to file a fresh suit on the same cause of action. - 10 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 10. On the other hand, the learned counsel for the defendants vehemently submitted that, the application is not maintainable. It is specifically contended that, the plaintiff nearly after lapse of 12 years has taken contention regarding the alleged fraud played and created the partition deed dated: 24.05.2010 and as such it involves the question of law and hence, it is prayed to dismiss the application. 11. I have gone through the entire records and as rightly contended in the application, the plaintiff now wants to plead fraud, played on her and created the registered partition deed. However, the applicant has come up with the said allegation nearly after lapse of 12 years. The plaintiff can be permitted to withdraw her suit and point of limitation is a mixed question of law and facts. As such, it is the burden on the plaintiff to prove her case. As such if the plaintiff is permitted to withdraw the suit, no hardship or prejudice would be caused to the defendants. 12. The Provision Under Order 23 Rule 1(3) clearly says that, when the court is satisfied that that a suit must fail by reason of some formal defect, or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for that subject matter of a suit or a part of a claim permit the plaintiff to withdraw the suit. As such, here in this case also the plaintiff has made out grounds to allow the application and accordingly, I answered Point No.1 in the Affirmative. 13. Point No.2: In view of above findings and discussions, I proceed to pass the following :O R D E R: I.A. No.XII filed under Order 23 Rule 1(3) and Section 151 of C.P.C by the applicant is hereby allowed. - 11 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 The plaintiff is permitted to withdraw the suit and to file a fresh suit on the same cause of action.” 7. As can be seen from the reasoning and findings recorded by the trial Court, it cannot be said that any prejudice would be caused to the petitioners if liberty was granted in favour of the respondent -plaintiff to withdraw the suit with liberty to file a fresh suit, especially when the petitioners would be entitled to defend such new suit to be filed by the respondent - plaintiff by taking up all defences including the defence of limitation. Under these circumstances, I am of the considered opinion that the impugned order passed by the trial Court cannot be said to suffer from any illegality or infirmity nor can the same is said to have occasioned failure of justice warranting interference by this Court in the exercise of its jurisdiction, under Article 227 of the Constitution of India as held by the Apex Court in the case of Radhey Shyam and Ors. Vs. Chhabi Nath and Ors. Reported in (2015) 5 SCC 423. - 12 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 8. Insofar as the reliance placed on the judgment of the Apex Court in V. Rajendran's case supra is concerned, in the said case, the plaintiff specifically contended that there was a mistake in the schedule to the plaint which constituted formal defect which would have the effect of defeating the claim of the plaintiff and in that circumstance, the Hon’ble Apex Court came to the conclusion that it was always open for the plaintiff to seek amendment of the plaint and as such the very invocation of Order XXIII Rule 1(3) of CPC in the circumstances of the said case would not arise. 9. However, in the case on hand, as stated supra, the attempt made by the respondent-plaintiff to amend the plaint and to rectify the defects in the original plaint and for addition of additional prayers having been rejected by the trial Court, the respondent-plaintiff was left with no option than to seek withdrawal of the suit by filing a fresh suit on the same cause of action. Under these circumstances, having regard to the nature of the suit and - 13 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 the claim for partition of her legitimate share in the suit schedule properties put forth by the respondent-plaintiff in immovable properties, I am of the view that the trial Court was fully justified in passing the impugned order and as such, the said judgment is of no assistance to the petitioners in the present petition. 10. Accordingly, the following: ORDER i. Petition is hereby disposed of without interfering with the impugned order. ii. Liberty is reserved in favour of the respondent - plaintiff to file a fresh/new suit on the same cause of action subject to all just exceptions and limitation and defences available to the petitioners. iii. It is further directed that in the event the respondent –plaintiff files such a fresh/new suit pursuant to the present order, the petitioners would be entitled to take up all - 14 - HC-KAR NC: 2026:KHC:9786 WP No. 36657 of 2025 defences including the defence of limitation and all rival contentions on all aspects of the matter in the said fresh/new suit are kept open and no opinion is expressed on the merits/demerits of the rival contentions. Sd/- (S.R.KRISHNA KUMAR) JUDGE BVK List No.: 3 Sl No.: 22