The court stressed the requirement for reasoned orders when denying the right to file fresh suits after withdrawal, necessitating remittance for reconsideration.

ORAL ORDER

Batch of these petitions raise a challenge to orders dated

07.01.2020, passed by the V Additional Civil Judge and JMFC, Hassan, on applications - I.A.Nos.9 and 5 respectively, filed CRP No. 712 of 2024 HC-KAR under XXIII Rule 1 of the CPC, in O.S.Nos.113/2016, 112/2016 and 114/2016, respectively, whereby, permits withdrawal of the suits but declines to reserve liberty to file fresh suits on the same cause of action.

2. Heard Smt. A.R.Sharadamba, learned counsel for petitioners and Sri Mahesh Arkalgud Srikanth, learned counsel for respondent No.1 in all the petitions. Respondent No.2 in all the three petitions are served and unrepresented.

3. Facts in brief as narrated in C.R.P.No715/2024, are taken up for consideration, as the facts in other two petitions are identical. They are as follows:

4. The petitioners institute a suit against the respondents in O.S.No.113/2016, seeking declaration and permanent injunction on the score that the property was purchased by their ancestor in terms of the registered sale deed 27.03.1975. Emergent notice was ordered and the trial progressed. Other suits on the same identical cause of action were clubbed. Despite sufficient opportunity being granted, the defendants did not cross-examine the plaintiffs. At that juncture, application – I.A.No.9 is filed by the plaintiffs under Order XXIII Rule 1 of the CRP No. 712 of 2024 HC-KAR CPC to withdraw the suit on the score that there are technical errors in the suit. The concerned Court permits to withdraw the suits, but does not reserve liberty to file fresh suit. It is these orders impugned in the respective petitions that are called in question in the subject petitions.

5. Learned counsel for petitioners would reiterate the contents narrated in the petition and submits that Order XXIII Rule 1 of the CPC permits withdrawal of the suit and also liberty to file fresh suit on the same cause of action. He would further contend that the orders of concerned Court is bereft of reasons as to why the liberty to fresh suit is not reserved on the same cause of action.

6. Learned counsel for respondent No.1 submits that he would not have any objection, if this Court either remit the matter back for fresh consideration or grant liberty to file a fresh suit.

7. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.

CRP No. 712 of 2024 HC-KAR

8. The afore-narrated facts are not in dispute. The orders impugned in all these cases is common and the order impugned in W.P.No.715/2024 is to be noted and reads as follows:

“ORDERS ON IA NO.9 U/O 23 RULE 1 OR C.P.C FILED BY PLAINTIFF Plaintiff has filed the suit for declaration and permanent injunction as not to fence the property.

Plaintiff acquired the suit schedule property from their ancestor Channabovi. He acquired through sale deed dated 27.03.1975. plaintiff is in possession and enjoyment of suit schedule property. Defendants without having right are interfering in the suit schedule property.

Plaintiff has filed application under order 23 rule

1(3) with affidavit stating that there is technical error in the suit hence to withdraw the suit.

On perusal of plaint court noticed that plaint has no formal defect as per order 23, Rule 1(3) of C.P.C. without any formal defect suit cannot be withdrawn and plaintiff cannot file suit on same cause of action. Plaintiff can make amendments if necessary. Its been since 4 years matter is adjudicating. Hence I proceed to pass as followings:

ORDER

Application U/o 23 rule 1 of C.P.C filed by the plaintiff hereby partly allowed.

Plaintiff is at liberty to withdraw the suit, but does not have liberty to file fresh suit on same cause of action.

Call on:

(PRIYANKA T.K)

CRP No. 712 of