After 22 Years, Karnataka HC Rejects Bid To Withdraw Dismissed Suit And Sue Again As Appeal Was Set For Judgment

In brief

The question

Whether the First Appellate Court could permit withdrawal of the suit with liberty to institute a fresh suit on the same cause of action after the trial court had dismissed the suit and the appeal had been posted for judgment.

The court held

The High Court allowed the writ petition.

It also directed

The High Court set aside the order dated 23 April 2025 in R.A. No. 14/2016, and rejected the respondents’ application to withdraw the suit with liberty to file a fresh suit on the same cause of action.

01Facts

The respondents, who were the plaintiffs, brought O.S. No. 194/2004 seeking declaration and injunction.

pp. 3–4

The trial court dismissed the suit on 7 August 2013, and the respondents appealed in R.A. No. 14/2016.

pp. 3–4

After hearing the appeal and posting it for judgment, the First Appellate Court allowed the respondents’ application under Order XXIII Rule 1(3) read with Section 151 CPC to withdraw the suit with liberty to file a fresh suit on the same cause of action.

pp. 3–4

The petitioners, who were the defendants, challenged that order by writ petition.

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02Issues

i.Whether the First Appellate Court could permit withdrawal of the suit with liberty to institute a fresh suit on the same cause of action after the trial court had dismissed the suit and the appeal had been posted for judgment.

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ii.Whether the absence of a defect in the pleadings justified granting leave to withdraw the suit and bring a fresh suit.

p. 6

03Law Applied

Order XXIII Rule 1(3) CPC governs permission to withdraw a suit with liberty to institute a fresh suit; such permission is not available as a matter of course and must be justified under the rule.

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Relying on R. Rathinavel Chettiar v. Sivaraman, (1999) 4 SCC 89, the Court stated that, once a decree has been passed, rights vest in the successful party and the plaintiff cannot withdraw the suit as of right.

pp. 7–8

The Court also relied on the Division Bench decision in Rabiya Bi Kassim M. v. The Country Wide Consumer Financial Services Ltd., ILR 2004 Karnataka 2215, in support of its view that an application to withdraw the suit could not be entertained when the matter was posted for pronouncement of judgment.

pp. 7–8

Provisions in the judgment · 1 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 151

04Reasoning

The suit had been dismissed after a full trial, and the appeal had been heard and listed for judgment when the respondents sought withdrawal.

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The Court found no defect in the plaint and considered that the parties had already spent more than 22 years in litigation.

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In those circumstances, granting liberty to file a fresh suit on the same cause of action would undermine finality and prejudice rights arising from the dismissal.

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The Court held that allowing the application at the judgment stage was contrary to the principles in Rathinavel Chettiar and the view in Rabiya Bi Kassim.

pp. 6–8