The Karnataka High Court has affirmed that in partition suits, a defendant who has not consented to the plaintiff’s withdrawal of the suit may invoke the inherent powers under Section 151 of the Code of Civil Procedure to seek recall of the dismissal order. This ruling reinforces the principle that substantive rights of co-sharers cannot be extinguished by unilateral action without due process.
Background & Facts
The Dispute
The dispute arose from a suit for partition and declaration filed by the plaintiff in O.S. No. 2430/2003 before the City Civil and Sessions Judge, Bengaluru, seeking a 1/6th share in ancestral properties. The suit involved multiple defendants, including the petitioner, Smt. B.K. Sudha (Defendant No. 4), who had filed a written statement and a counter-claim on 20.01.2025. The suit was not adjudicated on merits but was dismissed on the plaintiff’s application for withdrawal.
Key Facts
- The plaintiff filed a memo seeking leave to withdraw the suit on 05.01.2026.
- The trial court accepted the memo and dismissed the suit on the same day, 05.01.2026.
- The petitioner/defendant No.4 had not given any consent or endorsement indicating agreement to the withdrawal.
- On the evening of 05.01.2026, the petitioner appeared before the trial court and orally objected to the withdrawal.
- On 07.01.2026, the petitioner filed an application under Section 151 CPC seeking recall of the order dismissing the suit.
- The application was heard on 14.01.2026 and dismissed by order dated 29.01.2026.
- The petitioner filed this writ petition under Article 227 of the Constitution on 01.02.2026.
- The petitioner is a co-sharer claiming a share in the suit properties and had actively participated in the litigation by filing a counter-claim.
- The respondents, including other co-sharers and property developers, did not contest the petitioner’s status as a party with substantive rights.
Procedural History
- 20.01.2025: Defendant No.4 filed written statement and counter-claim in O.S. No. 2430/2003.
- 26.06.2025: Trial court granted ad-interim injunction restraining defendants (excluding 11, 13, 18) from alienating suit properties.
- 05.01.2026: Plaintiff filed memo for withdrawal; trial court dismissed suit same day without hearing defendant No.4.
- 07.01.2026: Defendant No.4 filed I.A. under Section 151 CPC seeking recall of dismissal order.
- 14.01.2026: Hearing on I.A. conducted.
- 29.01.2026: Trial court dismissed I.A. without addressing merits or citing relevant precedents.
- 01.02.2026: Writ Petition No. 6059/2026 filed before Karnataka High Court under Article 227.
- 26.03.2026: Writ petition heard and reserved.
- 08.04.2026: Judgment delivered.
The Parties' Positions
The petitioner, Smt. B.K. Sudha, asserted that as a co-sharer who had filed a counter-claim, she had an independent substantive right in the suit. Her withdrawal without consent violated the principles of natural justice and the procedural safeguards established for partition suits.
The respondents, including the plaintiff and other co-defendants, contended that the dismissal of the suit as withdrawn amounted to a final order, and the appropriate remedy was appeal - not an application under Section 151 CPC. They also pointed to a separate partition suit filed by the petitioner in O.S. No. 737/2022 as an alternative remedy.
Relief Sought
The petitioner sought:
- Quashing of the order dated 29.01.2026 dismissing her application under Section 151 CPC.
- Restoration of her application to the trial court for fresh consideration.
- A direction to the trial court to apply the principles laid down in Smt. Gowramma v. Nanjappa and Jet Plywood (P) Ltd. v. Madhukar Nowlakha.
The Legal Issue
The central question was whether a defendant in a partition suit, who has not consented to the plaintiff’s withdrawal and has filed a counter-claim, may invoke the inherent powers under Section 151 of the Code of Civil Procedure to seek recall of the order dismissing the suit as withdrawn, in the absence of a statutory provision permitting such recall.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on two key precedents: Jet Plywood (P) Ltd. v. Madhukar Nowlakha (2006) 3 SCC 699 and Smt. Gowramma v. Nanjappa (ILR 2001 Kar 4853). It was argued that:
- Section 151 CPC empowers courts to act ex debito justitiae to prevent abuse of process and secure justice, especially where the Code is silent.
- In partition suits, all co-sharers stand on equal footing; unilateral withdrawal without notice to all parties violates procedural fairness.
- The trial court’s failure to hear the petitioner before dismissal rendered the order voidable.
- The dismissal did not constitute a decree and hence was not appealable, making Section 151 the only available remedy.
- The petitioner’s oral objection on the same day and timely filing of the recall application demonstrated due diligence.
For the Respondent
The respondents’ counsel contended that:
- Once a suit is dismissed as withdrawn, it becomes a final order, and Section 151 CPC cannot be invoked to recall it.
- The remedy lies in appeal, not in inherent powers.
- The petitioner had an alternative remedy in O.S. No. 737/2022, filed independently.
- Jet Plywood applied only to plaintiffs seeking recall, not defendants.
- The withdrawal memo was duly served, and the petitioner had opportunity to object before the order was passed.
The Court's Analysis
The Court undertook a detailed examination of the jurisprudence on inherent powers under Section 151 CPC and the unique nature of partition suits. It emphasized that the Code of Civil Procedure is not exhaustive, as held in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527), and courts must act to prevent injustice where no specific remedy exists.
"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 Court distinguished the judgments relied upon by respondents - Ram Prakash Agarwal and Dr. P. Nalla Thampy Thera - as cases involving decrees passed on merits or ex parte, not dismissals by withdrawal. In such cases, appeal is the remedy. Here, no adjudication occurred.
The Court further held that Jet Plywood was directly applicable, even though the application was filed by a plaintiff. The principle established was not limited to plaintiffs but extended to any party whose substantive rights are prejudiced by an order of withdrawal without notice.
The Court then turned to its own precedent in Smt. Gowramma v. Nanjappa, which mandates that in partition suits:
"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."
The trial court’s failure to comply with this mandatory procedure rendered its order of dismissal procedurally defective. The impugned order dismissing the recall application was not a speaking order and failed to address the petitioner’s reliance on Gowramma and Jet Plywood.
The Court concluded that the petitioner’s right to seek recall under Section 151 CPC was not only maintainable but necessary to uphold the integrity of partition litigation and prevent procedural abuse.
The Verdict
The writ petition was allowed. The order dated 29.01.2026 dismissing the application under Section 151 CPC was set aside. The application was restored to the file of the trial court. The trial court was directed to reconsider the application in accordance with law, applying the principles laid down in Jet Plywood (P) Ltd. and Smt. Gowramma v. Nanjappa. All contentions of the parties were left open for adjudication on merits.
What This Means For Similar Cases
Recall of Withdrawal Is Permissible in Partition Suits
- Practitioners may now file applications under Section 151 CPC to recall dismissal orders in partition suits where withdrawal occurred without notice to co-sharers.
- The remedy is available even if the applicant is a defendant with a counter-claim, not just the plaintiff.
- The absence of a statutory provision does not bar recourse to inherent powers when justice demands it.
Procedural Compliance Is Non-Negotiable in Partition Litigation
- Courts must mandatorily issue notice to all parties before accepting a withdrawal memo in partition suits.
- Oral objections recorded on the same day constitute sufficient notice for the purpose of invoking Section 151 CPC.
- Failure to hear parties renders the dismissal order voidable, not merely erroneous.
Inherent Powers Are Not a Last Resort but a Duty
- Courts cannot abdicate their duty to act ex debito justitiae merely because the Code does not explicitly provide a remedy.
- The Jet Plywood principle applies broadly: if withdrawal prejudices a substantive right and no appeal lies, Section 151 must be invoked.
- Writ petitions under Article 227 are maintainable when subordinate courts ignore binding precedents on procedural fairness.
