Smt. B K Sudha Alias Shanthamma v. R Krishna Murthy

Order XXIII Rule 1, C.P.C., permitting withdrawal of the application filed to get the suit withdrawn, was impermissible, incorrect and improper and therefore, there was no scope for the trial court or the High Court to

allow the application for withdrawal of the suit by order dated 11.7.2004.

¶20On the basis of the submission made by the learned counsel representing the respondent therein, it was relevant for the Supreme Court to give a finding as to whether in the circumstances, such a power should have been exercised or not under Section 151, C.P.C. Since the learned judge of the trial court did not choose to exercise the power vested in the court under Section 151, C.P.C., the High Court stepped in, in exercise of its powers under Article 227 of the Constitution of India in order to restore the suit filed by the 1st respondent therein.

¶21In fact reliance has been placed on a Division Bench decision rendered by the Hon'ble High Court of Calcutta in the case of RAMESWAR SARKAR (supra) wherein it has been reiterated that the civil court has inherent power under Section 151, C.P.C. to allow withdrawal of a suit, after setting aside the order dismissing the suit for non-prosecution. It is further reiterated that Order XXIII Rule 1,

C.P.C. provides for withdrawal with or without liberty to file a fresh suit. It is further stated that Section 151, C.P.C. is wide enough and the court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of inherent power, if there are justifiable reasons for allowing withdrawal of application for withdrawal of suit.

¶22As per the facts of the case in RAMESWAR SARKAR, a revision petition under Section 115, C.P.C. before the High Court of Calcutta had been filed by Rameswar Sarkar against the State of West Bengal. Section 115, C.P.C. had not yet been amended providing the embargo to question the orders passed on interlocutory applications, and such an embargo is found in the proviso which has come into effect from 1.7.2002 in Section 115, C.P.C.

¶23On a combined reading of the decisions in the case of JET PLYWOOD and RAMESWAR SARKAR (both supra), it is abundantly clear that any order passed under Section 151, C.P.C. is amenable to be

questioned by filing a petition under Article 227 of the Constitution of India, though ultimately a suit would get revived on a petition under Article 227 being allowed. Even otherwise, as per the events that took place in the case of JET PLYWOOD, the Code of Civil Procedure had already been amended and it was in force from

1.7.2002 and the dates which are forthcoming in that case are subsequent to 1.7.2002. The petition was filed under Article 227 of the Constitution of India since the trial court had not invoked power under Section 151, C.P.C. The High Court of Calcutta did exercise inherent power under Section 151, C.P.C. on the ground that the trial court had not exercised the jurisdiction vested in it. Accordingly the petition filed under Article 227 of the Constitution of India is justified.

¶24In the case of GIRIJA VALLABHAN .v. J.B.J.PLANTATION PVT. LTD. & OTHERS ([2012] 2 Kar.L.J. 309), the High Court of Kerala has held that 'In both the revision and also a challenge under Article 227 of the Constitution of India, what is involved is exercise of supervisory jurisdiction of the High

Court. A remedy by way of revision, which is not linked with the substantive right of the party, is available to impeach the order of the subordinate court by itself would not debar the aggrieved person from invoking the constitutional remedy under Article 226/227 in cases where a writ of certiorari or the exercise of supervisory jurisdiction to keep the subordinate court within the bounds of its authority is made out.'

¶25In the present case, in order to pursue her substantive right in the suit filed by her, the plaintiff wanted to invoke the inherent power in terms of Section 151, C.P.C. and set aside the order of dismissal of the suit made on the memo filed by her. Accordingly point no.(1) is, therefore, answered in the affirmative."

¶14In view of the above judgments, it is clear that, particularly in a partition suit, all parties claiming a share stand on equal footing and that if the suit is dismissed as withdrawn, without hearing all the parties, an affected party is entitled to agitate his/her

substantive right by filing an application seeking to recall such an order in the interest of justice.

¶15Since the trial court has not adjudicated the suit on merits, the order of dismissal as withdrawn does not amount to a decree that can be challenged by way of an appeal. Therefore, the application filed by the petitioner/defendant No.4 under Section 151 of the CPC, seeking to recall the order dated 05.01.2026, allowing the withdrawal of suit is maintainable before the trial court.

¶16The judgments relied upon by the respondents pertain to cases that were decided either on merits or by way of ex parte decrees. In those cases, suits were not dismissed as withdrawn. Hence, the said judgments are not applicable to the facts of the present case as this is a case of dismissal by way of withdrawal and without adjudication on merits.

¶17The specific case of the petitioner/defendant No.4 is that she did not give consent for the withdrawal of the suit and that without giving any opportunity to all the parties much less the petitioner herein, the withdrawal memo has been accepted. The learned counsel for the petitioner/defendant No.4, relying upon the judgment of this Court in SMT. GOWRAMMA (supra), contended that the order dated 05.01.2026 was passed contrary to the said judgment of this Court. The relevant paragraph is extracted below: "16. The procedure to be adopted by Courts in a partition suit, when a plaintiff wants to withdraw the suit, or when plaintiff wants the suit to be dismissed as settled out of Court with some defendants, can be summarised thus :

(i) When a plaintiff wants a partition suit to be dismissed or withdrawn as settled out of Court, the Court should require notice of such application or memo

to all other parties (not only all defendants, but co-plaintiffs if any) and hear the parties.

(ii) If all parties are agreeable for the dismissal or withdrawal, the Court may grant the request.

(iii) If any defendant has already sought partition and separate possession by paying Court Fee and opposes the dismissal/ withdrawal, it shall permit such defendant to transpose himself/herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not.

(iv) Even if no defendant has sought the relief of partition and separate possession, till then, the Court may in appropriate cases permit any defendant who files an application in that behalf, to get himself transposed as plaintiff and claim partition and separate possession by paying necessary Court Fee and continue the suit. Refusal to grant such permission should be for valid reasons to be assigned by the Court."

¶18From the above judgment it is very clear that in a partition suit if the parties want to withdraw the suit, the court is required to hear all the parties before granting such a leave. The petitioner herein has filed an application for recalling the order dated

05.01.2026 and has taken up all these contentions while relying upon the judgments of this Court.

Despite the same, the trial court, while passing the impugned order, has not considered the said contentions raised by the petitioner/defendant No.4, and there is no finding with respect to the said aspects. The impugned order is not a speaking order. On this ground alone, the writ petition deserves to be allowed. Hence, the point raised for consideration in this writ petition is answered in the affirmative.

¶19Accordingly, the following order is passed:

(i) The writ petition is allowed.

(ii) The impugned order dated 29.01.2026 passed on the application filed by the petitioner/defendant No.4 under Section 151 of CPC in O.S. No.2430/2003 by the XLIII Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside.

(iii) The application filed by the petitioner/defendant No.4 under Section 151 of CPC is hereby restored to the file of the trial court.

(iv) The trial court is directed to reconsider the said application in accordance with law.

(v) All the contentions of the parties are left open. Sd/- (H. T. NARENDRA PRASAD) JUDGE

Cm/-

1, IN,THE,HIGH,COURT,OF,KARNATAKA,AT,BENGALURU, thDATED,THIS,THE,8 ,DAY,OF,APRIL,2026, BEFORE, THE,HON'BLE,MR.,JUSTICE,H.,T.,NARENDRA,PRASAD, WRIT(PETITION(NO.(6059(OF(2026((GM-CPC)( , BETWEEN:( , SMT.,B,K,SUDHA,@,SHANTHAMMA, D/O,C,RAMA,RAO,AND, CHANDRAVATHI,BAI, W/O,LATE,B,S,KRISHNA, AGED,ABOUT,80,YEARS, THR/AT,NO,131,,5 ,CROSS, RD3 ,MAIN,,DUO,HEIGHTS,LAYOUT, BEGUR,ROAD,,BANGALORE-560,068., , REPRESENTED,THROUGH,HER,, POWER,OF,ATTORNEY,HOLDER,, SHRI.,B,K,RAGHAVENDRA, S/O,B,K,SUDHA, AGED,ABOUT,56,YEARS, R/AT,SAME,ADDRESS,AS,ABOVE., ...,PETITIONER, , (BY,SRI.,AJAY,J,NANDALIKE,,ADVOCATE), , ( AND( , 1., R,KRISHNA,MURTHY, , S/O,LATE,C,RAMA,RAO, , AGED,ABOUT,73,YEARS, ND TH, NO.,1,,2 ,MAIN,,4 ,BLOCK, , THYAGARAJANAGAR, , BANGALORE-560028., , , 2, 2., R,RADHAKRISHNA,RAO, , S/O,LATE,C,RAMA,RAO, , AGED,ABOUT,82,YEARS, , SY.,NO.56,,VIJAYARAJA,ESTATE, , CHOKKANAHALLI,,JAKKUR,POST, , BANGALORE-560064., , 3., T,V,SRIDHARA, , AGED,ABOUT,52,YEARS, , S/O,LATE,SMT,SUNDARAMMA, , HAVING,ADDRESS,AT, , "SREENIKETHANA",,PUTTANNA,ROAD, , NEAR,DS,MAX,SUSHEELA,SCION, , HENNUR,VILLAGE,,HBR,LAYOUT, , BANGALORE-560,043., , 4., T,V,VEDAVYASA, , AGED,ABOUT,60,YEARS, , S/O,LATE,SMT,SUNDARAMMA, , HAVING,ADDRESS,AT, , "SREENIKETHANA",,PUTTANNA,ROAD, , NEAR,DS,MAX,SUSHEELA,SCION, , HENNUR,VILLAGE,,HBR,LAYOUT, , BANGALORE-560,043., , 5., T,V,VIJAYA, , AGED,ABOUT,52,YEARS, , S/O,LATE,SMT,SUNDARAMMA, , HAVING,ADDRESS,AT, , "SREENIKETHANA",,PUTTANNA,ROAD, , NEAR,DS,MAX,SUSHEELA,SCION, , HENNUR,VILLAGE,,HBR,LAYOUT, , BANGALORE-560,043., , 6., T,V,KAMALA,@,KAMALA,NAGARAJAN, , AGED,ABOUT,55,YEARS, , D/O,LATE,SMT,SUNDARAMMA, HAVING,ADDRESS,AT, , 32/14,,SHANTHI,STREET,, , VETRINAGAR,EXTN,,CHENNAI, , TAMIL,NADU-600082., , 7., SMT.,KRISHNAVENI, 3, , D/O,LATE,C,RAMA,RAO, , AGED,ABOUT,76,YEARS, , SY.,NO.,58,,VIJAYARAJA,ESTATE, , CHOKKANAHALLI,,JAKKUR,POST, , BANGALORE-560064., , 8., SRI,BIDDAPPA, , AGED,ABOUT,102,YEARS, , S/O,LATE,BIJJAPPA, , R/AT,ELLANAPALYA, , ARABIC,COLLEGE,POST, , BANGALORE-560,045., , 9., SMT.,GOWRAMMA, , AGED,ABOUT,92,YEARS, , D/O,BIDAPPA, , R/AT,ELLANAPALYA, , ARABIC,COLLEGE,POST, , BANGALORE-560,045., , 10., SRI,K,SIRINIVAS, , AGED,ABOUT,51,YEARS, , S/O,SRI,KRISHNAPPA, TH, R/AT,NO.,685,,11 ,CROSS, TH, 4 ,MAIN,,VIJAYANAGAR, , BANGALORE-560,040., , 11., SMT.,JAT,JATHURUTHA, , AGED,ABOUT,69,YEARS, , D/O,CHOWRI,REDDY, , R/AT,ELLANAPALYA, , ARABIC,COLLEGE,POST, , BANGALORE-560045., , 12., SMT.,K,K,SUNITA, , AGED,ABOUT,57,YEARS, , D/O,KEMPAIAH, , R/AT,PATEL,MUNIVEKATAPPA,LAYOUT, , NAGAVARA,,ARABIC,COLLEGE,POST, , BANGALORE-560,045., , 13., M/S,MANYATA,PROMOTERS, , PRIVATE,LIMITED, 4, ST, 1 ,FLOOR,,CLASSIC,COURT, , NO.9/1,,RICHMOND,ROAD, , BENGALURU-560,025., , REPRESENTED,BY,ITS,, MANAGING,DIRECTOR,, , SRI,REDDY,VEERAIMA., , , 14., SRI,R,MADHU, , S/O,RADHAKRISHNA,RAO, , MAJOR,IN,AGE, , R/AT,CHOKKANAHALLI,VILLAGE, , NEAR,D,J,FARM,,JAKKUR,POST, , BANGALORE-560,064., , 15., SRI,SANJEEV,SHAKHAPUR, , AGED,ABOUT,66,YEARS, , S/O,SRI,A,R,SHAKHPUR, , R/AT,NO.11-1822,,VIDYANAGAR, GULBARGA-585103., , 16., SRI,MAHENDRA,KARLE, , S/O,LATE,L,T,KARLE, , MAJOR,IN,AGE, , NO.151,,INDUSTRIAL,AREA,,NEAR, , YESHWANTHPURA,,OPP.,METRO, , BANGALORE-560,022., , 17., SMT.,KALPANA,JAGADEESH, , @,KALPANA,BELUR, , W/O,JAGADEESH,BELUR, , MAJOR,IN,AGE, , NO.151,,INDUSTRIAL,AREA,,NEAR, , YESHWANTHPURA,,OPP.,METRO, , BENGALURU-560,022., , 18., SMT.,LAKSHMI,S,NARAYANA, , D/O,N,S,VENKATARAMU, , MAJOR,IN,AGE, , NO.151,,INDUSTRIAL,AREA, , NEAR,YESHWANTHPURA,,OPP.,METRO, , BENGALURU-560,022., , 19., SRI,G,R,BHASKAR, 5, S/O,SRI,G,N,RAMASWAMY, MAJOR,IN,AGE, , NO.151,,INDUSTRIAL,AREA, , NEAR,YESHWANTHPURA,,OPP.,METRO, , BENGALURU-560,022., , 20., M/S,VAJRAM,ESTATES,PVT,LTD.,, , A,COMPANY,INCORPORATED, , UNDER,THE,COMPANIES,ACT,,2003., , SY.NO.58,,60,,61/1, , CHOKKANAHALLI,,THANISANDRA, , MAIN,ROAD,,BANGALORE-560,064., , THROUGH,ITS,MANAGING,DIRECTOR,, , MR.,VAJRAM,PAVAN,KUMAR, ...,RESPONDENTS, , (BY,SRI.,MANUPRABHAKAR,KULKARNI,,ADVOCATE,FOR,C/R20:, SRI.,D,R,RAVISHANKAR,,SENIOR,ADVOCATE,FOR, SR