A partition suit must include all necessary parties, and withdrawal with liberty to file a fresh suit is permissible, protecting the rights of all involved.

ORAL ORDER

This petition by the defendant Nos.1(a), 1(b), 3 and 3(a) in O.S.No.1316/2007 is directed against the impugned order dated 18.12.2025, whereby the memo filed by the plaintiff seeking withdrawal of the suit with liberty to file a fresh suit was allowed by the trial Court.

2. Heard learned counsel for the petitioner and perused the material on record. For the order proposed, notice to respondent is dispensed with.

3. A perusal of the material on record will indicate that the respondent Nos.1 and 2 - plaintiffs instituted the aforesaid suit against the petitioners and respondent Nos.3 to 8 for partition and separate possession of their alleged share in the suit schedule properties and for other reliefs. During the pendency of the suit, the plaintiffs filed a memo seeking withdrawal of the suit with liberty to file a fresh suit. The said memo was accepted by the Trial Court by passing the impugned order, which is assailed in the present petition.

4. Before averting to the contentions urged by the petitioner, it is relevant to extract the memo filed by the plaintiffs which reads as under:

“MEMO

In view of the fact that some of the joint family properties were not included in the present suit and also some of the parties were left out in the present suit, to add all the joint family properties which are available for partition and also to make proper parties to the suit, the plaintiffs intends to file a fresh suit by withdrawing the present suit. Hence, the plaintiffs hereby pray that this Hon’ble Court be pleased to permit the plaintiffs to withdraw the above suit with a liberty to file a fresh case in the interest of justice and equity.”

5. The said memo was accepted by the trial Court by passing the impugned order by placing reliance on the judgment of division bench of this Court in the case of S.K.Lakshminarasappa, Vs. B. Rudraiah and Ors - ILR 2012 KAR 4129 , as hereunder:

“Counsel for the plaintiff filed memo stating that some of the properties are not inserted and hence the plaintiffs are intending to withdraw the suit seeking liberty to file fresh suit.

Suit is filed for the relief of partition and until and unless final decree is drawn any number of suits can be filed for this, this Court relies upon ILR 2012 KAR 4129 .

Hence, suit is dismissed as withdrawn.”

6. In Lakshminarsappa's case supra, the Division Bench of this Court held as under:

(2) SUIT FOR PARTITION - NECESSARY PARTY

54. Plaintiff is the dominus litus. He cannot be compelled to sue a person against whom he does not claim any relief. Doctrine of ‘dominus litus’ is applied to one who though not originally a party has made himself one, by intervention or otherwise, and has assumed the entire control and responsibility for one side, and is treated by the Court as liable for costs as a person who is really and directly in this suit as a party. The theory of dominus litus, however, should not be overstretched in the matter of impleading of parties, because it is the duty of the Court to ensure that if for deciding the real matter in dispute, a person is a necessary party, the Court can order such person to be impleaded. It is the settled law that it is open to the Court to add any such person as necessary party in the suit to enable the Court to effectively adjudicate the question involved in the suit.

55. Order 1 of CPC deals with parties to suits. Order 1 Rule 1 deals with the question as to who may be joined as plaintiffs; whereas, Order 1 Rule 3 stipulates who may be joined as defendants. Order 1 Rule 9 mandates that no suit shall be defeated by reason of mis-