- 1 - HC-KAR NC: 2026:KHC:1550 WP No. 41703 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12THDAY OF JANUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO.41703 OF 2019 (GM-CPC) BETWEEN: SRI. SANKALLI NAGAPPA S/O LATE BHEEMAPPA AGED ABOUT 52 YEARS, R/AT SASVIHALLI VILLAGE, HARAPNAHALLI TALUK, DAVANAGERE DISTRICT – 583131. …PETITIONER (BY SRI. SANATHKUMAR SHETTY K.,ADVOCATE) AND: 1. SANKALLI MUGAPPA S/O LATE BHEEMAPPA AGED ABOUT 57 YEARS, R/AT SASVIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583131. SHANKALLI SHAVAMMA DEAD BY LRS 2. HONNAMMA D/O SHANKALLI SHAVAMMA AGED ABOUT YEARS, R/AT SASVIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583131. - 2 - HC-KAR NC: 2026:KHC:1550 WP No. 41703 of 2019 3. SHANTHAMMA D/O SHANKALLI SHAVAMMA AGED ABOUT YEARS, R/AT SASVIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583131. 4. SANKALLIAKKAMMA W/O SANKALLI YESHAVANTA AGED ABOUT 28 YEARS, R/AT SASVIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583131. …RESPONDENTS (BY SRI. RUDRAPPA P., ADVOCATE FOR R1 & R4; R2 AND R3 ARE SERVED) *** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO INTERFERE WITH THE ORDER DATED 31.05.2019 PASSED ON I.A NO.III IN O.S.NO.31/2012 ON THE FILE OF CIVIL JUDGE AND JMFC, HARAPANAHALLI VIDE ANNEXURE-A BY SETTING ASIDE THE SAID ORDER, ETC. THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER 1. The report of the registry is that notice is 'refused' of proposed respondent Nos.3(c), 3(d) and 3(e). Accordingly, the said respondents are deemed to be served. - 3 - HC-KAR NC: 2026:KHC:1550 WP No. 41703 of 2019 2. None appears for respondent No.2, despite service. 3. The present petition seeks to challenge the order dated 31.05.2019, passed by the learned Civil Judge & JMFC, Harapanahalli. 4. By the impugned order, the learned Trial Court has rejected the application filed under Order XXIII Rule 1(3) read with Section 151 of the Code of Civil Procedure, 1908, which is filed by the petitioner/plaintiff, seeking to withdraw the suit with liberty to institute a fresh suit, on the same cause of action. It was held that the petitioner cannot be allowed to file a fresh suit on the same cause of action. 5. At the outset, learned counsel for the petitioner submits that the application contains an inadvertent error inasmuch as that it was on the basis of a fresh cause of action which arose on the death of the mother petitioner/plaintiff. Thus, the withdrawal was not the same - 4 - HC-KAR NC: 2026:KHC:1550 WP No. 41703 of 2019 cause of action. He further submits that he be permitted to file a fresh application giving all the correct details. 6. Learned counsel for the respondent submits that the said suggestion is amenable to him, provided he is given opportunity to file objections and argue the matter before the Trial Court. 7. The suit is filed for declaration and partition inter-se family members of the plaintiff and defendants. It is the case of the plaintiff that the plaintiff and the first defendant are the brothers, while the defendant No.2 is the mother and the remaining defendants are the sisters of the plaintiff. 8. The suit was filed with respect to the suit schedule properties which were originally belonging to the father. However, it is the contention of the respondent/defendant No.1 that the properties are the exclusive properties of defendant No.2/mother. Additional objections were also - 5 - HC-KAR NC: 2026:KHC:1550 WP No. 41703 of 2019 raised including the objection that there was no earlier Partition Deed by the respondents. 9. Given these circumstances, prima facie, upon the demise of the mother, the rights of the plaintiff and defendants in the properties of the mother would also accrue even if it were her exclusive property. 10. In these circumstances, this Court deems it appropriate to pass the following: ORDER (i) The impugned order dated 31.05.2019 passed by the learned Civil Judge & JMFC, Harapanahalli, on I.A.No.III in O.S.No.31/2012, is set aside. The petitioners shall file a fresh application within two weeks from today, setting out all the requisite details. (ii) The respondents will be at liberty to file their objections thereafter within two weeks. (iii) The Trial Court shall adjudicate the application, in accordance with law. - 6 - HC-KAR NC: 2026:KHC:1550 WP No. 41703 of 2019 (iv) The rights and contentions of both the parties are left open to be agitated before the learned Trial Court. (v) Both parties are directed to appear before the learned Trial Court on 16.02.2026 for arguments on the application to be filed by the petitioner. 11. The petition stands disposed of in the aforegoing terms. All pending applications stand closed. (TARA VITASTA GANJU) JUDGE BMV* List No.: 1 Sl No.: 4 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA