IMPORTANT POINT
In case of formal defect in the plaint, it can be withdrawn with liberty to file fresh suit.

B. Veerappa, J.—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 for partition is not maintainable and some of the properties are not included in the plaint schedule and therefore suit is to be dismissed, etc.

3. When the matter was posted for evidence, at that stage, plaintiffs filed I.A.No.VII under Order XXIII Rule 1(3)(a) r/w. Section 151 of CPC to withdraw the suit with liberty to file a fresh suit contending that while the plaintiffs came to know some mistakes occurred while filing the suit and contended that all are in joint possession, the plaintiffs’ father and his elder brother did not get khatha in their names and same has not been stated in the plaint which is a formal defect occurred in the plaint, etc. Therefore, they want to withdraw thepresent suit with liberty to file a fresh suit.

4. The defendant filed objections to the said application. The trial Court on considering the application and the objections, rejected the said application by the impugned order mainly on the ground that the Court has to be satisfied about the existence of the formal defect due to which the suit is likely to fail or other sufficient ground for compelling the plaintiffs to institute fresh suit. Hence, the present writ petition is filed.

5. I have heard the learned counsel for the parties to the lis.

6. Sri Somashekhar Kashimath, learned counsel for the petitioner-plaintiff contended that the impugned order passed by the trial Court rejecting I.A.No.VII filed under Order XXIII Rule 1(3)(a) r/w. Section 151 of CPC is erroneous and contrary to the material on record. He further contended that the trial Court dismissed the application mainly on the ground that if there are any formal defects, then the plaintiffs are at liberty to correct the same in the plaint by filing necessary application which is contrary to the provisions of Order XXIII Rule 1(3)(a) of CPC. In support of his contention, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Baniram & others Vs. Gaind & others, reported in AIR 1982 SC 789.

7. Per contra, Sri Rajeswara P.N., learned counsel for the first respondent-defendant No.1 sought to justify the impugned order.

8. Having heard the learned counsel for the parties to the lis, the only point that arises for my consideration is:—

“Whether the trial Court is justified in rejecting I.A.No.VII filed under Order XXIII Rule 1(3)(a) r/w. Section 151 of Code of Civil Procedure under the facts and circumstances of present case?”

9. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties. It is clear that the plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are joint family properties of the plaintiffs and the defendant. When the matter was posted for evidence, the plaintiffs filed I.A.No.VII under Order XXIII Rule 1(3)(a) of Code of Civil Procedure Code to with draw the suit with liberty to file a fresh suit contending that there were some formal defects in filing the suit. The trial Court considering the said application, recorded a finding that on perusal of the pleadings and documents on