Case Note & Summary
The petitioner, M/s. Vaishnavi Engineers and Developers Private Limited, had filed a suit (RCS No. 782 of 2012) against the respondents seeking declaration and injunction regarding a Development Agreement dated 31st May 2008. On 20th April 2013, the petitioner unconditionally withdrew the suit by filing a pursis, and the learned Civil Judge permitted the withdrawal. Over nine years later, on 4th October 2023, the respondents filed an application seeking condonation of delay in filing an application to recall the order permitting withdrawal, alleging that the withdrawal was fraudulent and that they were not informed. The trial court allowed the condonation application, observing that the delay was sufficiently explained because the petitioner had not submitted any building proposal until January 2023. The petitioner challenged this order by way of writ petition. The High Court examined the scope of Order XXIII Rule 1 CPC and held that the plaintiff has an absolute right to withdraw a suit unconditionally under sub-rule (1), without any requirement of notice to the defendant or leave of court. The court further held that the delay of over 9 years was grossly unexplained, as the defendants were aware of the withdrawal since 2013 and had even filed a separate suit (RCS No. 249 of 2013) seeking interim relief in relation to the same subject matter. The court also noted that an application to recall an order permitting unconditional withdrawal is not maintainable, as the court has no jurisdiction to recall such an order except in cases of fraud, which must be specifically pleaded and proved. The High Court, therefore, quashed the impugned order and allowed the writ petition.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order XXIII Rule 1(1) CPC - Absolute Right of Plaintiff - The plaintiff has an unqualified right to withdraw a suit unconditionally under Order XXIII Rule 1(1) CPC, without any requirement of notice to the defendant or leave of court, except in cases involving minors or persons under disability. The court cannot impose terms or refuse permission for such withdrawal. (Paras 11-12)
B) Civil Procedure - Condonation of Delay - Sufficient Cause - Delay of 9 years 4 months 18 days - The defendants' explanation that they only became aware of the need to recall the withdrawal order when the plaintiff submitted a building proposal in January 2023 was held to be insufficient. The defendants were aware of the withdrawal since 2013 and had even filed a separate suit. The delay was gross and unexplained. (Paras 13-15)
C) Civil Procedure - Recall of Order - Maintainability - Order XXIII Rule 1(1) CPC - An application to recall an order permitting unconditional withdrawal of a suit is not maintainable, as the plaintiff's right to withdraw is absolute. The court has no jurisdiction to recall such an order except in cases of fraud, which must be specifically pleaded and proved. (Paras 16-18)
Issue of Consideration
Whether the trial court was justified in condoning a delay of 9 years 4 months and 18 days in filing an application to recall an order permitting unconditional withdrawal of a suit, and whether such an application is maintainable.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 22nd February 2024 passed by the learned Civil Judge, Kalyan, and dismissed the respondents' application for condonation of delay.
Law Points
- Order XXIII Rule 1(1) CPC confers absolute right on plaintiff to withdraw suit unconditionally
- no notice to defendant required
- delay condonation requires sufficient cause
- fraud must be pleaded with particularity
Case Details
2025 LawText (BOM) (2) 215
WRIT PETITION NO.5611 OF 2024
Mr. A.A. Karva (for Petitioner), Mr. Hemant Gadigaonkar a/w. Mr. Devidas Bhoir and Ms. Ashwini Mhatre (for Respondents)
M/s. Vaishnavi Engineers and Developers Private Limited (Through its Authorized Representative Navin Singh)
Navnath Ramkrishna Mhatre and Others
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Nature of Litigation
Writ petition challenging an order condoning delay in filing an application to recall an order permitting unconditional withdrawal of a suit.
Remedy Sought
Petitioner sought quashing of the order dated 22nd February 2024 passed by the learned Civil Judge, Kalyan, which allowed the respondents' application to condone delay in filing an application to recall the order dated 20th April 2013 permitting withdrawal of the suit.
Filing Reason
The petitioner contended that the trial court erred in condoning a gross delay of over 9 years without sufficient cause, and that the application to recall the withdrawal order was not maintainable.
Previous Decisions
The suit (RCS No. 782 of 2012) was unconditionally withdrawn on 20th April 2013. The respondents filed an application on 4th October 2023 seeking condonation of delay to file an application to recall that order. The trial court allowed the condonation application on 22nd February 2024.
Issues
Whether the trial court was justified in condoning a delay of 9 years 4 months and 18 days in filing an application to recall an order permitting unconditional withdrawal of a suit.
Whether an application to recall an order permitting unconditional withdrawal of a suit under Order XXIII Rule 1(1) CPC is maintainable.
Submissions/Arguments
Petitioner's counsel argued that no sufficient cause was shown for the delay; the defendants were aware of the withdrawal since 2013 and had even filed a separate suit; the application to recall was misconceived.
Respondents' counsel argued that the trial court had discretion to condone delay; the withdrawal was fraudulent and behind their back; the court should examine the merits; reliance was placed on K.S. Bhoopathy, Mathuralal, and Jet Ply Wood.
Ratio Decidendi
Under Order XXIII Rule 1(1) CPC, a plaintiff has an absolute right to unconditionally withdraw a suit without any requirement of notice to the defendant or leave of court. An application to recall such an order is not maintainable except in cases of fraud, which must be specifically pleaded and proved. A delay of over 9 years in filing such an application cannot be condoned without sufficient cause, and the explanation that the defendants only became aware of the need to act when the plaintiff submitted a building proposal is insufficient, especially when the defendants were aware of the withdrawal since 2013.
Judgment Excerpts
A plain reading of the aforesaid provisions, especially comparing and contrasting the text of sub-rule (1) and (3) of rule 1 of Order XXIII, it becomes abundantly clear that the plaintiff may withdraw or abandon the suit under sub-rule (1) of rule 1 of Order XXIII, at any stage.
The right of the plaintiff to withdraw the suit under sub-rule (1) of rule 1 of Order XXIII is not circumscribed by any restrictions, save and except where the plaintiff happens to be a minor or a person to whom the provisions contained in rule 1 to 14 of Order XXXII extend.
Sub rule (3) of rule 1 of Order XXIII, on the contrary, operates in different sphere. It addresses a situation where the plaintiff seeks leave to withdraw the suit with liberty to file a fresh suit.
Procedural History
The petitioner filed a suit (RCS No. 782 of 2012) in 2012. On 20th April 2013, the suit was unconditionally withdrawn. On 4th October 2023, the respondents filed an application for condonation of delay to file an application to recall the withdrawal order. The trial court allowed the condonation application on 22nd February 2024. The petitioner challenged this order by filing the present writ petition on an unspecified date. The High Court reserved judgment on 30th January 2025 and pronounced on 21st February 2025.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXIII Rule 1, Section 151
