IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 9201 OF 2024 (GM-CPC)

BETWEEN:

1. SMT. V. BHAGYAREKHA W/O LINGARAJU T D/O LATE T. VENKATAPPA AGED ABOUT 63 YEARS R/AT HOUSE NO.66

7th CROSS, I BLOCK RAMAKRISHNA NAGAR MYSORE, PIN - 570 022.

2. SMT. V. PADMAREKHA W/O T.M. GOVINDARAJU D/O LATE T VENKATAPPA AGED ABOUT 59 YEARS R/AT HOUSE NO.1029

5th MAIN, OPPOSITE CORPORATION BANK Digitally VIJAYANAGARA I STAGE signed by MYSORE, PIN - 570 022.

NANDINI M S Location:

HIGH COURT 3. SMT. V. SHASHIREKHA OF D/O LATE T VENKATAPPA KARNATAKA AGED ABOUT 57 YEARS R/AT HOUSE NO.10/233 SANTHE PETE, KOLLEGALA TOWN PIN 571 440.

…PETITIONERS (BY SRI GIRISH M.K, ADV.)

AND:

1. SRI V. SRIDHAR S/O LATE T. VENKATAPPA AGED ABOUT 55 YEARS.

2. SMT. USHA @ ANITHA W/O V SRIDHAR AGED ABOUT 43 YEARS.

RESPONDENT NO.1 & 2 BOTH R/AT C/O MANJULA DEVI PANDURANGA TEMPLE ROAD 7th WARED, BASAVESHWARA NAGARA, KOLLEGALA TOWN PIN 571 440.

3. SMT. S. JAYALAKSHMI W/O LATE RAMESHKUMAR AGED ABOUT 51 YEARS.

4. R SMITHA D/O LATE RAMESHKUMAR AGED ABOUT 26 YEARS.

BOTH THE RESPONDENTS NO.3 AND 4 ARE RESIDING AT MOKSHAMARGA HOUSE NO.609, 1 FLOOR

9tH MAIN ROAD SIDDARTHA LAYOUT MYSORE - PIN - 570 011.

…RESPONDENTS THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD. 11.08.2023 PASSED ON I.A. NO. 9 UNDER ORDER 23 RULE 1 BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC KOLLEGALA IN O.S.NO. 7/2015 VIDE ANNX-F.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

ORAL ORDER

1. Plaintiffs have filed this writ petition under Article 227 of the Constitution of India, with a prayer to set aside the order dated 11.08.2023 passed on IA.no.9 in O.S.No.7/2015 by the Court of Addl. Civil Judge & JMFC, Kollegala.

2. Heard the learned Counsel for the petitioners.

3. Petitioners have filed O.S.No.7/2015 before the jurisdictional Civil Court at Kollegala seeking the relief of partition and separate possession of the suit schedule property and also for mesne profits. The defendants have entered appearance in the said suit and filed their written statement opposing the suit claim. The Trial Court based on the rival pleadings, has framed as many as six issues in O.S.No.7/2015 and Issue no.5 is with regard to pecuniary jurisdiction to try the suit. The said issue is directed to be treated as preliminary issue. Subsequently, an application under Order XXIII Rule 1 of CPC was filed on behalf of the plaintiffs seeking permission of the Trial Court to withdraw the suit with liberty to file a fresh suit on the same cause of action. Defendants had filed objections to the said application and the Trial Court vide the order impugned, has rejected the said application. Being aggrieved by the same, petitioners are before this Court.

4. A reading of Order XXIII Rule 1 CPC would make it clear that court can permit withdrawal of a suit with liberty to file a fresh suit, in the event the court is satisfied that there is a formal defect in the suit or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.

5. In the case on hand, prayer is made in the application filed under Order XXIII Rule 1 CPC, to permit the plaintiffs to withdraw the suit for the reason that all the joint family properties are not included in the schedule of the plaint and the description of the suit schedule property has not been properly given.

6. Except the aforesaid, no other reason has been assigned by the plaintiffs to permit them to withdraw the suit and file a fresh suit on the same cause of action. The Trial Court having appreciated this aspect of the matter, has rejected the application filed under Order XXIII Rule CPC with an observation that the defect in the suit can be cured by filing necessary application and instead of exhausting the av