In a partition suit, a plaintiff cannot unilaterally withdraw the suit to the prejudice of other co-sharers without the Court hearing all parties; consequently, an application under Section 151 CPC to recall an order of withdrawal is maintainable to prevent injustice.

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION, QUASHING THE IMPUGNED ORDER DATED: 29.01.2026 AT ANNEXURE-A PASSED BY THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN OS NO.2430/2003 WHEREBY THE PETITIONER’S APPLICATION UNDER SECTION 151 CPC SEEKING RECALL OF THE ORDER DATED: 05.01.2026 HAS BEEN DISMISSED AND ETC.

THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 26.03.2026, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT, MADE THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

CAV ORDER

1. This writ petition is filed by defendant No.4 under Article 227 of the Constitution of India, challenging the order dated 29.01.2026 passed by the XLIII Additional City Civil and Sessions Judge, Bengaluru (for short, ‘the trial court’), on an I.A. filed by the petitioner/defendant No.4 under Section 151 of the Code of Civil Procedure (for short, ‘CPC), in O.S. No.2430/2003, whereby the application seeking to recall the order dated 05.01.2026 has been dismissed.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial court.

3. The plaintiff filed a suit in O.S.No.2430/2003 for partition and declaration, claiming a 1/6th share in the suit schedule properties. Upon service of summons, defendant No.4 appeared through counsel and filed a written statement along with a counter-claim on 20.01.2025. Thereafter, on 26.06.2025, on an application filed by the plaintiff, an ad-interim injunction order was granted by partly allowing the application, whereby the defendants (excluding defendant Nos. 11, 13 and 18) were restrained from alienating the suit schedule properties till the disposal of the suit.

4. On 05.01.2026, the plaintiff filed a memo seeking leave of the trial court to dismiss the suit as not pressed. On the same day, the said memo was accepted and the suit was dismissed as not pressed. Immediately, thereafter, on 07.01.2026, defendant No.4, who is the petitioner herein, filed an application under Section 151 of the CPC seeking to recall the order dated 05.01.2026. By the impugned order, the said application came to be dismissed. Being aggrieved, defendant No.4 is before this Court.

5. The learned counsel appearing for the petitioner/ defendant No.4 has raised the following contentions:

(i) Firstly, in a suit for partition, all parties claiming shares stand on equal footing. The original plaintiff cannot unilaterally withdraw the suit so as to defeat the substantive claims of the other co-sharers/coparceners.

(ii) Secondly, the memo for withdrawal was filed on 05.01.2026 and the petitioner/defendant No.4 had not given consent for such withdrawal of the suit. Without hearing the petitioner/defendant No.4, the order permitting the withdrawal was passed. Furthermore, on the same day, in the evening, the petitioner/defendant No.4 made a submission before the trial court objecting the withdrawal of the suit. Immediately thereafter, the I.A. was filed seeking to recall the said order of withdrawal. In support of this contention, reliance is placed on the judgment of this Court in Smt. Gowramma vs. Nanjappa AND OTHERS, reported in ILR 2001 KAR 4853, wherein it is held that in a partition suit, when the suit is dismissed or withdrawn as settled out of court, the Court should issue notice of such application or memo to all parties and hear them. Without considering the