Learned counsel for v. Rajendran Vs. Annasamy Pandia

Judgment

3. Santra Devi W/o Sh. Gopiram, Aged About 60 Years, Resident Of Ward No. 7, Pilani, Tehsil Surajgarh District Jhunjhunu (Raj) Gopiram S/o Sh. Todaram,, Resident Of Ward No. 7, Pilani, Tehsil Surajgarh District Jhunjhunu (Raj) (Since Deceased) Nagar Palika, Pilani, Through Adhishashi Adhikari, Nagar Palika Pilani, Tehsil Surajgarh, District Jhunjhunu (Raj) ----Respondents For Petitioner(s)

: Mr. Mahendra Kumar Jain For Respondent(s) : Mr. Harish Agrawal HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 26/05/2025 Order

1. Instant civil revision petition is preferred by petitioner plaintiff aggrieved from order dated 08.01.2020 in civil suit no. 35/2015 (435/2015) passed by learned Senior Civil Judge, Pilani, District Jhunjhunu whereby an application under Order XXIII Rule 3 CPC for withdrawal of suit was dismissed.

2. Learned counsel for petitioner while relying upon judgment in case of V. Rajendran Vs. Annasamy Pandia (Died) through LRs (2017) 5 SCC 63 submitted that the petitioner plaintiff has filed an application for withdrawal of suit with permission to file fresh suit but this application was dismissed by the trial court against the analogy of Order XXIII Rule 1 CPC. He also submitted that the plaintiff has mentioned wrong description of property in the suit, which fall in category of a defective suit, therefore, [2025:RJ-JP:22931] (2 of 5) [CR-33/2020] plaintiff has a right to withdraw the suit and after permission from the trial court can re-institute the same on same cause of action. He also submitted that right to withdraw is an absolute right and the trial court has erroneously dismissed the application for withdrawal of civil suit. Learned counsel has further placed reliance upon judgment in case of M. Subba Rao Vs. B. Vasanth AIR 2015 Hyderabad 68 (DB) and submitted that the plaintiff has an absolute right to withdraw his suit under Order XXIII Rule 1 CPC and asking for leave is just a matter of courtesy. He also submitted that the trial court has refused to allow withdrawal on wrong analogy.

3. Aforesaid contentions were opposed by learned counsel for respondent(s) and submitted that the plaintiff has no absolute right to withdraw the civil suit after a prolong litigation. He also submitted that Order XXIII Rule 1 CPC does not prescribe absolute withdrawal of any suit. He also submitted that the plaintiff has failed to show any formal defect in suit rather the plaintiff wants to withdraw current suit which is not maintainable and to prolong the litigation he wants to file a fresh suit.

4. Heard learned counsel for petitioner and learned counsel for respondents and perused the material placed on record along with judgments as referred by learned counsel for petitioner.

5. The facts giving rise to instant revision petition are that the petitioner plaintiff has filed a civil suit before the Civil Judge for declaration and mandatory injunction and during pendency of this civil suit an application under Order XXIII Rule 3 of CPC was filed for withdrawal of suit with liberty to institute a fresh suit but this [2025:RJ-JP:22931] (3 of 5) [CR-33/2020] application was dismissed by the trial court on 08.01.2020. Hence, this revision petition.

6. Order XXIII Rule 1 CPC is reproduced as under: “1. Withdrawal of suit or abandonment of part of claim.—(1) 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: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the 178 pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) 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 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 liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.(4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub- rule (3), any suit or part of a claim, without the consent of the other plaintiff.” [2025:RJ-JP:22931] (4 of 5) [CR-33/2020]

7. Aforesaid Rule 1(i) clearly indicate that at any time after the institution of suit the plaintiff may abandon his suit or a part of his claim. Further, Rule 1(3) provides that if the Court is satisfied for the reasons as mentioned therein it may grant permission to withdraw the suit on terms as it thinks fit.

8. A perusal of application dated 18.11.2019 indicate that a wrong provision was mentioned by the plaintiff and the trial court has discussed the same but considered the application with Rule 1(3) of Order XXIII CPC. Otherwise also, mentioning of wrong provision in any application is not a ground to throw out any application if the content and prayer of application is made about correct provision of law, therefore, on technical ground an application like present one cannot be dismissed.

9. In case of V. Rajendran (supra), Hon’ble Supreme Court while considering the provision of Order XXIII Rule 1(3) of CPC has held that the power to allow withdrawal of suit is discretionary and principle of withdrawal is founded on public policy to prevent institution of suit again and again on same cause of action. A suit may be withdrawn with permission to file a fresh suit only when Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit.

10. In case of M. Subba Rao (supra), a Division Bench of the Hyderabad High Court while considering the provision of Order XXIII Rule 1 CPC has held that if a suitor feels that litigation is unnecessary, it is not for the Court to insist that the suitor remains [2025:RJ-JP:22931] (5 of 5) [CR-33/2020] with the lis. When a suitor withdraws a lis, the Court has ample power to award cost as it would be clear from the language used in Sub-Rule 4(4) of Rule 1 of Order XXIII of CPC.

11. Having considered the legal position mentioned hereinabove in light of Rule 1 of Order XXIII CPC, a party can abandon or pray for withdrawal of suit on conditions as imposed by the Court but herein, the instant case, the trial court instead of permitting to withdraw, has directed the petitioner plaintiff to continue with the suit which the plaintiff petitioner has termed as defective. The order of the trial court is perverse and illegal and same is liable to be set aside, and an application for withdrawal is liable to be allowed.

12. In view of discussion made hereinabove, the instant revision petition is allowed and the order dated 08.01.2020 in civil suit no. 35/2015 (435/2015) is hereby set aside. As a result, the application dated 18.11.2019 is allowed and the civil suit no. 35/2015(435/2015) is dismissed as withdrawn with liberty to institute a fresh suit as mentioned in the application, after curing formal defects.

13. Misc. application, if any, stands disposed of. CHETNA BEHRANI /122 (ASHOK KUMAR JAIN),J