Case Note & Summary
The appellant, Smt. Mahadevi, was defendant No.3 in a partition suit (O.S. No.294/2002) filed by respondent No.1 (Mallikarjun) against the head of the family (respondent No.2) and other family members. During the pendency of the suit, the plaintiff filed I.A. No.19 under Order 23 Rule 1 CPC seeking permission to withdraw the suit. The trial court allowed the application on 04.09.2013 without issuing notice to the appellant, who had already filed her written statement and was contesting the suit. Aggrieved, the appellant filed this Regular First Appeal. The High Court held that once a defendant has entered appearance and filed a written statement, the court cannot permit withdrawal of the suit without hearing that defendant. The order of the trial court was set aside and the matter was remanded for fresh consideration of the withdrawal application after hearing the appellant.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order 23 Rule 1 CPC - Right of Defendant to be Heard - Where a defendant has filed written statement and contested the suit, the court cannot permit withdrawal of the suit without hearing such defendant - The trial court's order allowing withdrawal without notice to defendant No.3 is illegal and set aside - Held that the defendant who has already entered appearance and filed written statement has a right to be heard before withdrawal is permitted (Paras 1-4).
Issue of Consideration
Whether the trial court could permit the plaintiff to withdraw the suit under Order 23 Rule 1 CPC without hearing the defendant who had already filed written statement and contested the suit.
Final Decision
The appeal is allowed. The order dated 04.09.2013 passed by the III Addl. Senior Civil Judge, Gulbarga in O.S. No.294/2002 on I.A. No.19 is set aside. The matter is remanded to the trial court for fresh consideration of I.A. No.19 after hearing the appellant.
Law Points
- Order 23 Rule 1 CPC
- Right to be heard
- Withdrawal of suit without consent of defendants
- Natural justice
Case Details
2016 LawText (KAR) (07) 6
Regular First Appeal No.6054 of 2013
Justice Anand Byrareddy, Justice L. Narayana Swamy
Sri J. Augustin (for appellant), Sri Manavendra Reddy, Sri Arun M. Reddy, Sri Hanumantha Reddy (for respondents)
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Nature of Litigation
Appeal against order permitting withdrawal of partition suit without hearing defendant No.3.
Remedy Sought
Setting aside the trial court order dated 04.09.2013 allowing withdrawal of suit under Order 23 Rule 1 CPC.
Filing Reason
The appellant, defendant No.3, was not heard before the trial court permitted the plaintiff to withdraw the suit.
Previous Decisions
The trial court allowed I.A. No.19 filed by the plaintiff under Order 23 Rule 1 CPC permitting withdrawal of the suit on 04.09.2013.
Issues
Whether the trial court could permit withdrawal of suit under Order 23 Rule 1 CPC without hearing the defendant who had filed written statement and contested the suit.
Submissions/Arguments
Appellant argued that she was defendant No.3 and had filed written statement, but the trial court allowed withdrawal without notice to her.
Respondents argued that the plaintiff had a right to withdraw the suit under Order 23 Rule 1 CPC.
Ratio Decidendi
Once a defendant has entered appearance and filed a written statement, the court cannot permit withdrawal of the suit under Order 23 Rule 1 CPC without hearing that defendant. The right of the defendant to be heard is a principle of natural justice.
Judgment Excerpts
Heard the learned counsel for the appellant and learned counsel for the respondents.
During pendency of the suit, the plaintiff filed an application under Order 23 Rule 1 CPC seeking permission to withdraw the suit.
The trial court allowed the application without notice to the appellant.
The order impugned is set aside and the matter is remanded for fresh consideration.
Procedural History
The suit O.S. No.294/2002 was filed by respondent No.1 for partition. During pendency, plaintiff filed I.A. No.19 under Order 23 Rule 1 CPC for withdrawal. The trial court allowed the application on 04.09.2013 without hearing defendant No.3 (appellant). The appellant filed RFA No.6054/2013 against that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 23 Rule 1
