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:
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
the suit schedule properties. Upon service of
claim on 20.01.2025. Thereafter, on 26.06.2025, on
defendant Nos. 11, 13 and 18) were restrained from
4. On 05.01.2026, the plaintiff filed a memo
not pressed. On the same day, the said memo was
accepted and the suit was dismissed as not pressed.
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
not given consent for such withdrawal of the suit.
order permitting the withdrawal was passed.
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
Court in SMT. GOWRAMMA vs. NANJAPPA AND
to all parties and hear them. Without considering the
said judgment, the impugned order has been passed.
"decree" appealable under law. Therefore, an
application under Section 151 of CPC is maintainable.
(P) LTD. AND ANOTHER vs. MADHUKAR
SCC 699. It is further contended that, in the absence
justice. Reliance is also placed on the order passed by
this Court in W.P. No.19377/2015, disposed of on
09.07.2015. It is argued that the trial court, without
application. Hence, the writ petition deserves to be
6. Per contra, Sri D.R. Ravishankar, learned
(i) Firstly, once a final order has been passed in
the suit, the appropriate remedy available to the
parties is to file an appeal and hence, an application
for recalling an order of dismissal is not maintainable.
(ii) Secondly, the petitioner/defendant No.4 has
also filed a separate suit for partition in
O.S.No.737/2022 before the Principal Senior Civil
Judge, Bengaluru Rural, which is pending
consideration. It is further submitted that the
petitioner can seek for inclusion of all joint family
properties in the said suit and prosecute the same.
Therefore, the acceptance of the memo for withdrawal
does not cause any prejudice to her.
(iii) Thirdly, in view of the judgment of the Apex
Court in JET PLYWOOD (P) LTD. (supra), an
application for recalling an order of dismissal can be
allowed only at the instance of the plaintiff who had
withdrawn the suit, particularly if such withdrawal was
made due to mistake or misrepresentation. In such
circumstances, the Court may invoke its inherent
powers ex debito justitiae to do real and substantial
justice. Furthermore, in the said judgment relied upon
by the petitioner, the application under Section 151 of
CPC was filed by the plaintiff, whereas, in the present
case, the application is filed by a defendant. Hence, it
is not maintainable.
(iv) Fourthly, the notice of withdrawal was duly
served upon the petitioner/defendant No.4 by virtue
of which she had all the opportunity to object to the
withdrawal before the final order was passed.
7. Sri Manu Prabhakar Kulkarni, learned counsel
appearing for respondent No.20, contended that an
application under Section 151 of CPC is maintainable
only in a pending suit. Once the suit is dismissed as
withdrawn, such an application is no longer
maintainable. In support of the same, reliance is
placed on the order passed by this Court in
W.P.No.102807/2022 (disposed of on 12.02.2025), as
well as the judgments in RAM PRAKASH AGARWAL
AND ANOTHER vs. GOPI KRISHAN (DEAD
THROUGH LRs.) AND OTHERS, reported in (2013)
11 SCC 296 (paragraphs 13 and 14), and DR. P.
NALLA THAMPY THERA vs. B.L. SHANKER AND
OTHERS, reported in 1984 Supp SCC 631.
Accordingly, the dismissal of the writ petition is
sought.
8. By way of a rejoinder, learned counsel for the
petitioner submits that in the judgments relied upon
by the respondents, the suits had been decided on
merits after adjudication. In such circumstances, an
application under Section 151 of CPC for recalling is
not maintainable. However, in the present case, the
suit has been dismissed as withdrawn without any
adjudication on merits. Therefore, the said judgments
are not applicable to the facts of the present case.
9. Heard the learned counsel for the parties and
perused the writ petition papers.
10. The plaintiff filed a suit for partition and
declaration. After appearance, defendant No.4,
through counsel, filed a written statement and
counter-claim. On 05.01.2026, the plaintiff filed a
memo seeking withdrawal of the suit. The said memo
has been annexed to this writ petition. Notably, the
petitioner/defendant No.4 has not made any
endorsement indicating that she has no objection to
the withdrawal prior to the order of dismissal. On the
same day, the memo was accepted and the suit was
dismissed as withdrawn and the specific case of the
petitioner/defendant No.4 is that, on the very same
day, i.e., 05.01.2026, she mentioned before the trial
court that she had an objection to the withdrawal of
the suit. Immediately thereafter, she moved for
advancement of the matter. As per the order sheet,
the matter was advanced to 07.01.2026. On that day,
she filed an application under Section 151 of CPC
seeking for recalling of the order dated 05.01.2026.
The matter was then posted to 14.01.2026 for
hearing. After hearing the parties on the said
application, the impugned order came to be passed on
29.01.2026 by the trial court.
11. The point for consideration in this writ
petition is that,
If the suit for partition is dismissed as
withdrawn, whether the IA filed under
Section 151 of CPC to recall the said order
is maintainable?
12. As per the judgment of the Apex Court in
JET PLYWOOD (P) LTD. (supra), if a suit is
dismissed as withdrawn and an application is filed
seeking the recall of that order, such an application is
maintainable. The relevant paragraphs are extracted
below:
"23. As indicated hereinbefore, the only
point which falls for our consideration in these
appeals is whether the trial court was entitled
in law to recall the order by which it had
allowed the plaintiff to withdraw his suit.
24. From the order of the learned Civil
Judge (Senior Division), 9th Court at Alipore, it
is clear that he had had no intention of
granting any leave for filing of a fresh suit on
the same cause of action while allowing the
plaintiff to withdraw his suit. That does not,
however, mean that by passing such an order
the learned court divested itself of its inherent
power to recall its said order, which fact is also
evident from the order itself which indicates
that the court did not find any scope to
exercise its inherent powers under Section 151
of the Code of Civil Procedure for recalling the
order passed by it earlier. In the circumstances
set out in the order of 24-9-2004, the learned
trial court felt that no case had been made out
to recall the order which had been made at the
instance of the plaintiff himself. It was,
therefore, not a question of lack of jurisdiction
but the conscious decision of the court not to
exercise such jurisdiction in favour of the
plaintiff.
25. The aforesaid position was reiterated
by the learned Single Judge of the High Court
in his order dated 4-2-2005 though the
language used by him is not entirely
convincing. However, the position was clarified
by the learned Judge in his subsequent order
dated 14-3-2005 in which reference has been
made to a Division Bench decision of the
Calcutta High Court in Rameswar Sarkar [AIR
1986 Cal 19 : (1985) 2 CHN 482] which, in our
view, correctly explains the law with regard to
the inherent powers of the Court to do justice
between the parties. There is no doubt in our
minds that in the absence of a specific
provision in the Code of Civil Procedure
providing for the filing of an application for
recalling of an order permitting withdrawal of a
suit, the provisions of Section 151 of the Civil
Procedure Code can be resorted to in the
interest of justice. The principle is well
established that when the Code of Civil
Procedure is silent regarding a procedural
aspect, the inherent power of the court can
come to its aid to act ex debito justitiae for
doing real and substantial justice between the
parties. This Court had occasion to observe in
Manohar Lal Chopra v. Rai Bahadur Rao Raja
Seth Hiralal [1962 Supp (1) SCR 450 : AIR
1962 SC 527] as follows: (SCR p. 459)
"It is well settled that the provisions of
the Code are not exhaustive for the
simple reason that the legislature is
incapable of contemplating all the
possible circumstances which may arise
in future litigation and consequently for
providing the procedure for them."
26. Based on the aforesaid principle, the
Division Bench of the Calcutta High Court, in
almost identical circumstances in Rameswar
Sarkar case [AIR 1986 Cal 19 : (1985) 2 CHN
482], allowed the application for withdrawal of
the suit in exercise of inherent powers under
Section 151 of the Code of Civil Procedure,
upon holding that when through mistake the
plaintiff had withdrawn the suit, the court
would not be powerless to set aside the order
permitting withdrawal of the suit."
13. This Court has expressly held in
W.P.No.19377/2015, disposed of on 09.07.2015, that
the application under Section 151 of CPC to recall the
order of withdrawal/dismissal of the suit is
maintainable. The relevant paragraphs are extracted
below:
"16. As per the facts in the case of JET
PLYWOOD (supra), Madhukar Nowlakha, the
respondent therein, had filed an application to
dismiss the suit as withdrawn. On 11.7.2004 ,
the learned judge had allowed the said
application, but liberty had not been granted
to file a fresh suit on the same cause of action.
Within a month thereafter, i.e. on 23.8.2004,
Madhukar Nowlakha, plaintiff in Title Suit
No.32/03 filed an application for recalling the
order by which the suit had been dismissed as
withdrawn. It was his case that he was
misrepresented in making such application and
on account of such misrepresentation made by
Biswarup Bannerjee and other co-owners that
they would sell the property to him, he had
withdrawn the suit.
17. The learned Civil Judge (Senior
Divn.) of Alipore had rejected the said
application filed by Madhukar Nowlakha.
Thereafter he filed a second title suit in Title
Suit No.87/04 and it was pending. His prayer
for interim injunction in Title Suit No.87/04 had
been rejected. On 23.12.2004, Madhukar
filed an application before the High Court of
Calcutta in C.O.3982/04 challenging the trial
court's order dated 24.9.2004 refusing to recall
its earlier order dated 11.2.2004. The said
petition filed under Article 227 of the
Constitution of India had been admitted.
18. On 4.2.2005 the learned single Judge
of the Calcutta High Court allowed the petition,
C.O.3982/04 and restored Title Suit No.32/02
for trial before the Civil Judge (Senior Divn.) at
Alipore. This was called in question before the
Hon'ble apex court by Banerjee and other co-
owners mainly on the ground that their
advocate could not attend the hearing on
4.2.2005 and therefore they had filed the
application in CAN. No.1999/05 before the
learned single Judge to recall the order dated
4.2.2005. The said application was dismissed
by order dated 14.3.2005 after contest and
thus the order restoring the suit on 4.2.2005
was reaffirmed.
19. As a result of the same, two
Special Leave Petitions came to be filed before
the Hon'ble apex court, one in regard to the
restoration of title suit by order dated 4.2.2005
and another questioning the order dated
14.3.2005 rejecting the application for recalling
the order dated 4.2.2005. Both the S.L.Ps.
were taken up together for common hearing.
The question that was framed by the Hon'ble
apex court while considering the S.L.Ps. was as
follows:
Whether the learned single Judge of
the High Court of Calcutta acted within
his jurisdiction in restoring the suit of
the 1st respondent-plaintiff despite
leave neither having been asked for nor
granted, but specifically refused?
It had been contended before the Hon'ble apex
court on behalf of JET PLYWOOD that in the
absence of any prayer for leave to file a fresh
suit and specific prohibition being included in
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.
20. On 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.
21. In 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.
22. As 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.
23. On 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.
24. In 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.'
25. In 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."
14. In 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.
15. Since 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.
16. The 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.
17. The 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."
18. From 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.
19. Accordingly, 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/-
