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Withdrawal of Suit in CPC

Updated: May 5


Withdrawal of Suit in CPC

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Order 23 deals with the withdrawal and compromise of suits. It outlines two types of withdrawals:


1. Absolute withdrawal: This refers to withdrawal without the leave (permission) of the court.

2. Qualified withdrawal: This involves withdrawal with the leave (permission) of the court.


Withdrawal Without Leave 


Withdrawal without leave of the court, as per Order 23 Rule 1(1), allows the plaintiff to abandon their suit or part of their claim against any or all of the defendants at any time after the institution of the suit.


This right is absolute and unconditional, meaning the court cannot refuse the plaintiff's request to withdraw the suit and compel them to proceed with it unless a vested right has been established before such a request is made.


However, if the plaintiff abandons or withdraws the suit or part of the claim without the court's permission, they are barred from instituting a fresh suit concerning the same cause of action.


The underlying principle of Order 23 Rule 1 is that once a plaintiff initiates legal proceedings and files a suit, they are not allowed to file a new suit regarding the same subject matter if they abandon the original suit without court permission.


The law does not grant benefits or rights to an individual against their will (Invito beneficium non datur). In such cases of withdrawal without leave, the plaintiff may also be liable for costs awarded by the court to the defendant.


Additionally, Rule 1-A of Order 23, added by the Amendment Act of 1976, outlines circumstances under which a defendant may be permitted to be transposed as a plaintiff if the suit is withdrawn by the original plaintiff.

 
 

Withdrawal With Leave of Court


Withdrawal with leave of court, as outlined in Rule 1(3) of Order 23, allows for the withdrawal of a suit with the court's permission. If the court is satisfied that the suit is likely to fail due to some formal defect or if there are sufficient grounds to permit the plaintiff to initiate a fresh suit for the subject matter of the original suit or part of the claim, it may grant permission for the withdrawal.


In such cases, the court may allow the plaintiff to file a new suit concerning the same subject matter or part of the claim, on terms it deems appropriate.

 
 

The court may grant permission for withdrawal with leave based on the following grounds:


1. Formal defect: This refers to defects of form or procedure that do not impact the merits of the case, such as the absence of statutory notice, misjoinder of parties or causes of action, non-payment of proper court fees, failure to disclose a cause of action, errors in seeking relief, incorrect valuation of the subject matter, lack of territorial jurisdiction, defects in the prayer clause, etc.


2. Sufficient grounds: This pertains to reasons beyond formal defects, and the phrase need not be construed narrowly. Examples include premature suits, suits that have become futile, situations where execution of a decree would not be possible, cases where multiple suits were filed due to error, or instances where a Power of Attorney was omitted.


The court should interpret "sufficient grounds" liberally in the interest of justice.


However, the court cannot grant permission for withdrawal if the plaintiff is not prepared to proceed with the suit or if no notice has been served to the defendant due to factors like death.


Granting permission for withdrawal with leave is within the discretion of the court, which may decide to do so either upon the plaintiff's application or even suo motu (on its own initiative). This permission may be accompanied by terms regarding costs, among other factors, as deemed appropriate by the court.


Allowing the plaintiff to file a fresh suit effectively eliminates the bar of res judicata and restores the plaintiff to the position they would have been in had they not initiated any legal action at all.



Suit by Minor Plaintiff

By the Amendment Act of 1976, a specific provision was introduced to prevent the abandonment of a suit or any part of a claim by a minor plaintiff without the leave of the court.


This provision ensures that such decisions are made with due consideration for the minor's best interests.


Sub-rule (2) of Rule 1 mandates that an application for leave under the proviso to sub-rule (1) of Rule 1 must be accompanied by an affidavit from the next friend of the minor plaintiff.


Additionally, if the minor is represented by a lawyer, the application must include a certificate from the lawyer affirming that the proposed abandonment is in the minor's best interest.


Abandonment or Withdrawal in Cases of Multiple Plaintiffs

In cases where there are two or more plaintiffs involved in a suit, the abandonment or withdrawal of the entire suit or any part of the claim requires the consent of all the plaintiffs.


However, it is permissible for one of the plaintiffs to abandon or withdraw from the suit to the extent of their own interest in it, even if the other plaintiffs do not consent.


Abandonment or Withdrawal in Representative Suits

In cases where the plaintiff sues in a representative capacity, such as a class action, they are not permitted to abandon or withdraw the suit or any part of the claim.


However, the plaintiff may withdraw from the suit personally, but this action does not terminate the litigation, especially if other individuals have an interest in the case and the right to intervene and continue the legal proceedings.

 
 


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