The Plaintiff has no Absolute Right, at the Appellate Stage, to Withdraw from the Suit: Kerala High Court

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The Court Interpreted provisions of Order XXIII Rule 1of the Code of Civil Procedure which states that, at any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Rule 1(3) provides that, where the Court is satisfied, — (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with the liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

The following are the Observations made by the Court

The plaintiff can abandon a suit or a part of his claim as a matter of right without the permission of the court. The plaintiff need not obtain any permission from the Court to abandon the suit. He has the right to file an application to abandon his suit or part thereof at any time after its filing. In such a case, he will be precluded from suing again on the same cause of action. A defendant cannot compel the plaintiff to proceed with the suit. When the plaintiff files an application under sub-rule (1) of Rule 1 of Order XXIII of the Code and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for p ayment of costs. The reason is that while making a prayer to withdraw the suit under sub-rule (1) of Rule 1 of Order XXIII of the Code, the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. Mere withdrawal of the suit, without asking anything more, can always be permitted.

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No requirement that “sufficient ground” pleaded by the plaintiff for seeking permission to withdraw the suit with liberty to institute fresh suit shall be analogous to a formal defect

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The expression “sufficient grounds” occurring in clause (b) of Rule 1(3) of Order XXIII of the Code is not to be read ejusdem generis with the expression “formal defect” occurring in clause (a). There is no requirement that “sufficient ground” pleaded by the plaintiff for seeking permission to withdraw the suit with liberty to institute fresh suit shall be analogous to a formal defect. There can be no reason as to why the import and amplitude of the expression “sufficient grounds” in clause (b) of Rule 1(3) of Order XXIII of the Code should suffer any unwarranted confinement.

Therefore, it is now well-settled that there is a restriction on the right to withdraw from the suit at the appellate stage. The plaintiff has no absolute right, at the appellate stage, to withdraw from the suit. An application made at the appellate stage to withdraw the suit cannot be allowed by the court if granting such permission would have the effect of depriving or destroying or nullifying or annulling any right which has come to be vested with the defendant under the decree. The court shall keep in mind the fact that, when permission is granted to withdraw from the suit with liberty to file a fresh suit, the parties are placed in the same position as they would have been, had the suit not been instituted at all. The Court referred to Supreme Court’s judgments in Rathinavel Chettiar v. Sivaraman: (1999) 4 SCC 89 and Bhoopathy v. Kokila: AIR 2000 SC 2132.

Case name: SABU ISSAC vs. ANTONY CHACKO

Case no.: O.P(C) No.123 of 2020

Coram: JUSTICE R. NARAYANA PISHARADI

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