Case Note & Summary
The petitioner, Pandurang Rajaram Inamdar, was employed as Senior Vice President – Banking with the respondent, Accelya Solution India Private Ltd. (formerly Kale Consultants Limited). In July 2002, the respondent fixed his annual gross salary at Rs.13,50,000. In March 2004, the petitioner realized that the respondent had not deposited his salary since December 2003. He filed a suit (RCS/1496/2012) for recovery of arrears of salary, declaration that he is an employee of the respondent, and mandatory injunction to pay salary from April 2004 onwards. By amendment, he incorporated a prayer for declaration and mandatory injunction for salary from April 2004 with interest. The trial court partly decreed the suit for salary from January to March 2004 and three months' notice pay, but rejected the declaration and mandatory injunction for salary from April 2004, finding that the petitioner failed to prove he was an employee after March 10, 2004. The petitioner appealed (RCA/57/2019). During the appeal, he filed an application (Exhibit-23) seeking permission to abandon the part of the prayer for declaration that he is an employee. The District Judge rejected the application, holding that the abandonment would nullify findings in favor of the defendant. The petitioner challenged this order by way of writ petition. The High Court analyzed Order XXIII Rule 1 CPC, distinguishing between unconditional abandonment under Rule 1(1) and withdrawal with liberty to file fresh suit under Rule 1(3). It held that the right to abandon a part of claim under Rule 1(1) is unfettered and can be exercised at any stage, including appeal, without court's permission, subject only to costs. The defendant cannot object to such unconditional abandonment. The court found that the abandonment sought was unconditional and did not require permission; the District Judge erred in rejecting it. The High Court allowed the petition, set aside the impugned order, and permitted the petitioner to abandon the part of the prayer for declaration, with costs to be paid to the respondent.
Headnote
A) Civil Procedure - Withdrawal and Abandonment of Suit - Order XXIII Rule 1(1) CPC - Right to Abandon Part of Claim - The plaintiff has an unconditional right to abandon a part of his claim under Order XXIII Rule 1(1) CPC at any time after institution of suit, including at appellate stage, without requiring court's permission, subject only to payment of costs. The defendant cannot object to such unconditional abandonment. (Paras 13-18) B) Civil Procedure - Withdrawal and Abandonment of Suit - Order XXIII Rule 1(1) vs. Rule 1(3) CPC - Distinction - Abandonment under Rule 1(1) is a matter of right and does not require court's permission, whereas withdrawal with liberty to file fresh suit under Rule 1(3) is discretionary and requires formal defect or sufficient grounds. The two provisions operate in different spheres. (Paras 14-16) C) Civil Procedure - Withdrawal and Abandonment of Suit - Appellate Stage - Prejudice to Defendant - At the appellate stage, the plaintiff's right to abandon a part of claim under Order XXIII Rule 1(1) CPC remains unfettered, and the defendant cannot resist such abandonment on the ground of prejudice arising from trial court findings, as the abandonment is unconditional and does not nullify those findings. (Paras 17-18)
Issue of Consideration
Whether the plaintiff has an unfettered right to abandon a part of the claim under Order XXIII Rule 1(1) of the Code of Civil Procedure, 1908, at the appellate stage, and whether the defendant can object to such abandonment.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 24th November, 2023 passed by the learned District Judge, Kolhapur, and permitted the petitioner to abandon the part of the prayer for declaration as sought in Exhibit-23, subject to payment of costs to the respondent.
Law Points
- Right to abandon suit or part of claim under Order XXIII Rule 1(1) CPC is unconditional
- unfettered
- and can be exercised at any time including appellate stage
- Defendant cannot object to unconditional abandonment except for costs
- Abandonment does not require court's permission unless plaintiff is minor or person of unsound mind
- Withdrawal with liberty to file fresh suit under Order XXIII Rule 1(3) CPC is discretionary and requires formal defect or sufficient grounds
