IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 36657 OF 2025 (GM-CPC)

BETWEEN:

1. SMT RASHMI WIFE OF LATE H M SHAM, AGED ABOUT 49 YEARS, RESIDING AT RAVINDRA NAGAR, 3RD CROSS, HASSAN PIN 573201

2. SRI. JAYDEV S/O. LATE H M SHAM, AGED ABOUT 20 YEARS, RESIDING AT RAVINDRA NAGAR, 3RD CROSS, HASSAN - 573201 …PETITIONERS (BY SRI. M.S. VENUGOPALA, ADVOCATE)

Digitally signed by AND:

SHARADAVANI B Location: High Court of 1. SMT. H.M. SUMA Karnataka D/O LATE H R. MAHADEV, WIFE OF K P DODDEGOWDA, AGED ABOUT 45 YEARS, RESIDING AT NO.37, CHANDANA, 2ND CROSS, AHOK NAGAR, TUMAKURU CITY - 563 103, PRESENTLY RESIDING AT

11TH CROSS, WARD NO.52, SAMRUDHI NILAYA, MAHALAKSHMI NAGAR, TUMAKURU - 572 102. 2. SMT H M CHAMPA D/O. H R MAHADEV, WIFE OF NOEL GILBERT, AGED ABOUT 43 YEARS, AS PER PLAINT SHARAF OF DG DEIRA, CITY CENTER, DUBAI.

P.O BOX NO.31064.

PRESENTLY RESIDING AT DONATA MARVEL APARTMENT, SUNDARANAGARA, GOKULA EXTENSION, MATHIKERE, BENGALURU - 560 054.

…RESPONDENTS (BY SRI. SRINIVAS V.,ADVOCATE)

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, HASSAN IN OS NO.173/2022 DATED 10.09.2025 VIDE ANNEXURE-L, PASSED ON IA NO.12 FILED BY THE RESPONDENT NO.1 UNDER ORDER 23 RULE 1 (3) OF CODE OF CIVIL PROCEDURE 1908 AND REJECT THE APPLICATION IA NO.12 FILED BY THE RESPONDENT NO.1 IN OS NO.173/2022 UNDER ORDER 23 RULE 1 (3) OF CODE OF CIVIL PROCEDURE

1908 VIDE ANNEXURE-J AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL ORDER

This petition by the defendant in O.S.No.173/2022 is directed against the impugned order dated 10.09.2025 whereby the application I.A.No.12 filed by the respondent - plaintiff under Order XXIII Rule 1(3) of Code of Civil Procedure, 1908 (hereinafter referred to as CPC for short) for permission to withdraw the suit with liberty to file a fresh suit was allowed by the trial Court.

2. Heard the learned counsel for the petitioners and respondents and perused the materials placed on record.

3. A perusal of the material on record would indicate that the respondent-plaintiff instituted a suit against the petitioners-defendants for partition and separate possession of her alleged share in the suit schedule immovable properties and for other reliefs. On

16.12.2024, the first respondent-plaintiff filed an application seeking amendment of the plaint by incorporating paragraphs 5A to 5F and additional prayers in the suit, which was rejected by the trial Court vide order dated 04.04.2025. Subsequently, having regard to rejection of the amendment application, the respondent – plaintiff filed the instant application for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The said application having been opposed by the petitioners, the trial Court proceeded to pass the impugned order allowing the application, aggrieved by which, the petitioners are before this court by way of the present petition.

4. Learned counsel for the petitioners submits that having suffered an order of rejection of the amendment application, the respondent –plaintiff was not entitled to seek withdrawal of the suit with liberty to file a fresh suit on the same cause of action, especially when there was no formal defect in the original plaint which warranted such leave/permission to be granted in favour of the respondent - plaintiff. It was also submitted that the trial Court failed to appreciate that except stating that the respondent – plaintiff had suffered an order rejecting the amendment application, neither valid nor sufficient ground has been made out by the respondent to invoke the provisions contained in Order XXIII Rule 1(3) of CPC and seek permission to withdraw the plaint with liberty to file a fresh suit. It was there