Case Note & Summary
The petitioners, who were the original defendants in a civil suit (R.C.S. No. 144 of 2008) filed by the respondents (original plaintiffs), sought to withdraw the suit with liberty to file a fresh suit under Order 23 Rule 1 of the Code of Civil Procedure, 1908. The suit was for partition and separate possession of agricultural land. The petitioners contended that certain necessary parties were not joined in the suit, and therefore, they wanted to withdraw the suit and file a fresh one after impleading all necessary parties. The trial court, by order dated 15th February 2022, rejected the application on the ground that the defect of non-joinder could be cured by amendment, and the petitioners could not be allowed to withdraw the suit at that stage. The petitioners challenged this order before the High Court. The High Court observed that under Order 23 Rule 1 CPC, a plaintiff has an absolute right to withdraw the suit at any time after the institution of the suit, subject to the permission of the court if the suit has been set down for hearing. The court noted that the trial court's reasoning that the defect could be cured by amendment was not a valid ground to refuse withdrawal, as the petitioners had the right to choose their remedy. The High Court allowed the writ petition, set aside the impugned order, and permitted the petitioners to withdraw the suit with liberty to file a fresh suit on the same cause of action, subject to payment of costs of Rs. 5,000 to the respondents.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order 23 Rule 1 CPC - Non-joinder of necessary parties - The petitioners sought withdrawal of the suit with liberty to file a fresh suit on the ground that certain necessary parties were not joined. The trial court rejected the application holding that the defect of non-joinder could be cured by amendment. The High Court held that the trial court's reasoning was erroneous as the petitioners had a right to withdraw the suit under Order 23 Rule 1 CPC, and the court could not compel them to continue the suit. The court allowed the withdrawal with liberty to file a fresh suit, subject to payment of costs. (Paras 1-7)
Issue of Consideration
Whether the trial court erred in rejecting the petitioners' application under Order 23 Rule 1 of the Code of Civil Procedure, 1908 seeking withdrawal of the suit with liberty to file a fresh suit on the ground of non-joinder of necessary parties.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 15th February 2022 passed by the 2nd Joint Civil Judge, Junior Division at Kannad below exhibit 1 in R.C.S. No. 144 of 2008, and permitted the petitioners to withdraw the suit with liberty to file a fresh suit on the same cause of action, subject to payment of costs of Rs. 5,000 to the respondents.
Law Points
- Order 23 Rule 1 CPC
- Withdrawal of suit
- Liberty to file fresh suit
- Non-joinder of necessary parties
- Civil Procedure Code
Case Details
2022 LawText (BOM) (02) 10
Writ Petition No.2159 of 2022
Mr. P.N. Sonpethkar for Petitioners, Mr. Vikrant Palsikar for Respondent No.1
Gopalkrishna S/o. Digambarrao Kulkarni, Ramkrishna S/o. Digambarrao Kulkarni, Bhagyashree Gopalkrishna Kulkarni, Dhanshree Ramkrishna Kulkarni
Rajshekhar S/o. Digambarrao Kulkarni, Chandrashekhar S/o. Digambarrao Kulkarni, Lilabai W/o Arunrao Bendre, Ashwini W/o. Arunrao Pade, Sau. Prabhavati Pramodrao Kulkarni, Laxman S/o Tanhaji Sonawne, Bajirao S/o. Gavnaji Ghuge, Hasusabai W/o. Narayan Sonawne, Ashok S/o Narayan Sonawane, Sanjay S/o Narayan Sonawne, Balu @ Dnyaneshwar S/o Narayan Sonwane, Sau. Sharda W/o. Vasudeo Tonde, Sau. Akka @ Sunanda Bhausahb Khade
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Nature of Litigation
Civil writ petition challenging the trial court's order rejecting the petitioners' application under Order 23 Rule 1 CPC for withdrawal of suit with liberty to file a fresh suit.
Remedy Sought
The petitioners sought to withdraw the suit (R.C.S. No. 144 of 2008) with liberty to file a fresh suit on the same cause of action.
Filing Reason
The petitioners (original defendants) wanted to withdraw the suit because certain necessary parties were not joined, and they wished to file a fresh suit after impleading all necessary parties.
Previous Decisions
The trial court (2nd Joint Civil Judge, Junior Division at Kannad) rejected the application below exhibit 1 in R.C.S. No. 144 of 2008 on the ground that the defect of non-joinder could be cured by amendment.
Issues
Whether the trial court erred in rejecting the petitioners' application under Order 23 Rule 1 CPC for withdrawal of suit with liberty to file a fresh suit on the ground of non-joinder of necessary parties.
Submissions/Arguments
The petitioners argued that they had a right to withdraw the suit under Order 23 Rule 1 CPC and that the trial court's reasoning that the defect could be cured by amendment was erroneous.
The respondents opposed the withdrawal, contending that the suit had proceeded to a stage where withdrawal should not be permitted.
Ratio Decidendi
Under Order 23 Rule 1 CPC, a plaintiff has an absolute right to withdraw the suit at any time after institution, subject to the permission of the court if the suit has been set down for hearing. The court cannot compel the plaintiff to continue the suit merely because the defect of non-joinder could be cured by amendment. The plaintiff's right to withdraw is not defeated by the availability of an alternative remedy.
Judgment Excerpts
The petitioners have challenged the impugned order passed below exhibit 1 in R.C.S. No. 144 of 2008 by 2nd Joint Civil Judge, Junior Division at Kannad.
The trial court rejected the application on the ground that the defect of non-joinder could be cured by amendment.
The court held that the petitioners had a right to withdraw the suit under Order 23 Rule 1 CPC and the trial court's reasoning was erroneous.
Procedural History
The respondents (original plaintiffs) filed R.C.S. No. 144 of 2008 for partition and separate possession. The petitioners (original defendants) filed an application under Order 23 Rule 1 CPC seeking withdrawal of the suit with liberty to file a fresh suit. The trial court rejected the application on 15th February 2022. The petitioners challenged this order by filing Writ Petition No.2159 of 2022 before the Bombay High Court, which was allowed on the same day.
Acts & Sections
- Code of Civil Procedure, 1908: Order 23 Rule 1
