The court ruled on the permissibility of withdrawing a suit under Order XXIII Rule 1 and clarified that a trial court may not partially grant or deny such requests but must decide them in full.

ORDER :

S.R. KRISHNA KUMAR, J.

In this petition, petitioners seek the following reliefs:

"a) To issue writ in the nature of certiorari to quash the order passed on L.A.No.15, filed under order 23 rule 1 of code of civil procedure in O.S.No.876/2007, on the file of Principal Senior Civil Judge, at Anekal, Bangalore District, dated 28.11.2024 which is produced under ANNEXURE-E and,

b) To grant such other relief\s, as deems fit by considering the above said facts and circumstances of the case in the interest of justice and equity."

2. This petition by the plaintiffs in O.S.No.876/2007 on the file of the learned Principal Senior Civil Judge and JMFC, Anekal, is directed against the impugned order passed on I.A.No.15 dated 28.11.2024, whereby the said application filed by the petitioners/ plaintiffs under Order XXIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908, for permission to withdraw the suit and liberty to institute a fresh suit was partially rejected by the Trial Court, which permitted the petitioners/plaintiffs to withdraw the suit, but declined to grant them the permission to institute a fresh suit on the same cause of action.

3. Heard the learned counsel for the petitioners/plaintiffs and perused the material on record.

4. Since the respondents/defendants did not oppose or file objections to the application I.A.No.15 and for the order proposed, notice to the defendants/respondents is dispensed with for the purpose of disposal of the present petition.

5. A perusal of the material on record will indicate that the petitioners/plaintiffs instituted the aforesaid suit against the respondents/defendants for partition and separate possession of their alleged share in the suit schedule properties, for declaration and for other reliefs. The said suit having been contested by the respondents/defendants, the petitioners/plaintiffs filed the instant application I.A.No.15, seeking permission to withdraw the suit with liberty to file a fresh suit only in relation to item No.5 and item No.11 of the suit schedule properties. It was contented that insofar as the remaining items of suit schedule properties other than item No.5 and item No.11 were concerned, the petitioners/plaintiffs had compromised and amicably settled the dispute with the respondents/defendants. Though the said application I.A.No.15 was not opposed by the respondents/defendants who did not file any objections to the same and in fact the defendant No.44 stated that he did not have any objection to the said application, the Trial Court proceeded to pass the impugned order, partly allowing I.A. No.15, by permitting withdrawal of the suit but by declining to grant permission to file a fresh suit by the petitioners/plaintiffs, who are before this Court by way of the present petition.

6. A perusal of the impugned order will indicate that the Trial Court has proceeded on the erroneous premise that it is impermissible in law to grant liberty to file a fresh suit on the ground that the suit itself has become infructuous. In this context, the Trial Court failed to consider and appreciate the un-impeached, un- controverted and un-challenged averments made in the affidavit in support of the application I.A.No.15, which clearly indicated that the plaintiffs were entitled to not only withdraw the suit but also file a fresh suit in respect of Item No.5 and item No.11 of the suit schedule properties by granting liberty in this regard.

7. It is also pertinent to note that when an application under Order XXIII Rule 1 of CPC is filed, the Trial Court was entitled to either reject the application in-toto or allow the application in-toto and not allow th