The court ruled that plaintiffs can withdraw a suit with permission to file a fresh suit if sufficient grounds for withdrawal exist, overriding trial court's error in denying such permission.

ORDER :

S.R. KRISHNA KUMAR, J.

This petition by the plaintiff in O.S.No.313/2019 is directed against the impugned order dated 20.12.2023 passed on I.A.No.5, whereby the said application filed by the petitioner/plaintiff under Order 23 Rule 1 CPC seeking permission to withdraw the suit with liberty to file a fresh suit was partly allowed by the trial Court, which permitted withdrawal but declined to grant liberty in favour of the petitioner/plaintiff to file a fresh suit.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the material on record.

3. A perusal of the material on record will indicate that the petitioner/plaintiff instituted the aforesaid suit against the respondents/defendants for partition and separate possession of their alleged share in the suit schedule immovable properties and for other reliefs. The respondents/defendants having contested the said suit, the trial Court framed issues and at the stage of further evidence, the petitioner/plaintiff filed instant application seeking permission to withdraw the suit with permission to file a separate comprehensive suit. The said application having been opposed by the respondents/defendants, the trial Court proceeded to pass the impugned order partly allowing the application thereby permitting the petitioner/plaintiff to withdraw the suit but declining to grant permission to institute a fresh suit on the same cause of action. Aggrieved by the impugned order passed by the trial Court, the petitioner/plaintiff is before this Court by way of the present petition.

4. A perusal of the material on record including the impugned order will indicate that the sole ground on which the trial Court proceeded to reject I.A.No.5 is by coming to the conclusion that there was a delay on the part of the plaintiff in seeking withdrawal of the suit. In this context, the trial Court failed to consider and appreciate the averments made in the affidavit filed in support of the application, which constituted valid and sufficient grounds/cause so as to enable the petitioner/plaintiff to withdraw the suit together with granting liberty in favour of the petitioner/plaintiff to file a fresh suit. The said the impugned order is also contrary to the judgment of the Co-ordinate bench of this Court in the case of Chikkamadaiah vs. Ningamma and others reported in LAWS(KAR)-2017-3-67, wherein this Court has held that if an application under Order 23 Rule 1 CPC is filed, the trial Court has only two options viz., either dismiss the application in full or allow the application thereby granting permission for withdrawal as well as liberty to file a fresh suit by safeguarding the rights and defences available to the defendants in the event such a fresh suit is filed including the defence of limitation. In the said judgment, this Court held as under:

"The present writ petition is filed by the first plaintiff against the order dated 6.2.2016 dismissing I.A.No.VII, filed by the plaintiffs under Order XXIII Rule 1(3)(a) r/w. Section 151 of Code of Civil Procedure in O.S.No.56/2014 on the file of the I Additional Civil Judge and JMFC., Malavalli.

2. The plaintiffs filed a suit in O.S.No.56/2014 for partition and separate possession in the suit schedule properties contending that the suit schedule properties are joint family properties of the plaintiffs and defendant; plaintiffs and the defendant are the members of the joint family and there was no partition in the family, etc. The defendant filed her written statement denying the entire plaint averments and contended that no cause of action arose at the time of filing of the suit. She further contended that the suit