Case Note & Summary
The petitioner, Naseem Riyaz Khalifa, filed a suit for declaration and perpetual injunction against his wife (Respondent No.1) and her power of attorney holder (Respondent No.2) in the Civil Judge Senior Division, Kalyan. Subsequently, the petitioner and his wife reconciled and executed consent terms for a consent decree. The petitioner filed an application on 15-04-2011 to withdraw the suit against Respondent No.2 unconditionally and to pass a consent decree between him and Respondent No.1. The Trial Court rejected the consent terms on 22-11-2012 and the withdrawal application on 23-11-2012, holding that the withdrawal was not justifiable and that the consent decree would impact Respondent No.2's rights. The petitioner challenged both orders under Article 227 of the Constitution of India. The High Court held that under Order 23 Rule 1 CPC, a plaintiff has an absolute right to withdraw a suit unconditionally against any defendant at any stage, and the court cannot compel the plaintiff to litigate against an unwilling party. The withdrawal against Respondent No.2 was unconditional, and the consent terms between the petitioner and Respondent No.1 did not affect Respondent No.2's rights. The High Court set aside both impugned orders, allowed the withdrawal application, and directed the Trial Court to accept the consent terms and pass a consent decree accordingly.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order 23 Rule 1 CPC - Unconditional Withdrawal - Plaintiff has absolute right to withdraw suit unconditionally against any defendant at any stage - Court cannot compel plaintiff to continue litigation against a party he does not wish to prosecute - Held that Trial Court erred in rejecting application for withdrawal against Defendant No.2 (Paras 5-8).
B) Civil Procedure - Consent Terms - Compromise Decree - Order 23 Rule 3 CPC - Consent terms between plaintiff and defendant no.1 do not affect rights of defendant no.2 if withdrawal against defendant no.2 is unconditional - Trial Court's apprehension that consent decree would impact defendant no.2's rights is unfounded - Held that consent terms ought to have been accepted (Paras 7-8).
Issue of Consideration
Whether the Trial Court was justified in refusing to accept consent terms and rejecting the application for withdrawal of suit against Defendant No.2 under Order 23 Rule 1 CPC
Final Decision
The High Court allowed the writ petition, set aside the impugned orders dated 22-11-2012 and 23-11-2012, allowed the application for withdrawal of suit against Respondent No.2, and directed the Trial Court to accept the consent terms and pass a consent decree in terms thereof.
Law Points
- Right of plaintiff to withdraw suit unconditionally against any defendant under Order 23 Rule 1 CPC
- Court cannot compel plaintiff to litigate against unwilling party
- Consent terms between plaintiff and defendant no.1 do not affect rights of defendant no.2 if withdrawal is unconditional
Case Details
2013 LawText (BOM) (11) 39
Writ Petition No. 561 of 2013
Mr. P. D. Dalvi for the Petitioner, Mr. Tushar Pimple for the Respondent No.1, Mr. Ajit Ram Pitale for the Respondent No.2
Shafupta Naseem Khalifa & Anr.
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging two orders of the Trial Court in a suit for declaration and perpetual injunction.
Remedy Sought
Petitioner sought setting aside of Trial Court orders dated 22-11-2012 and 23-11-2012, and direction to accept consent terms and allow withdrawal of suit against Respondent No.2.
Filing Reason
Trial Court refused to accept consent terms between petitioner and his wife (Respondent No.1) and rejected application for withdrawal of suit against Respondent No.2.
Previous Decisions
Trial Court (Civil Judge Senior Division, Kalyan) passed order dated 22-11-2012 refusing to accept consent terms and order dated 23-11-2012 rejecting withdrawal application.
Issues
Whether the Trial Court was justified in refusing to accept the consent terms between the plaintiff and defendant no.1?
Whether the Trial Court was justified in rejecting the application for withdrawal of suit against defendant no.2 under Order 23 Rule 1 CPC?
Submissions/Arguments
Petitioner's counsel argued that under Order 23 Rule 1 CPC, plaintiff has absolute right to withdraw suit unconditionally against any defendant at any stage, and court cannot compel plaintiff to litigate against an unwilling party.
Respondent No.2's counsel argued that consent decree would impact Respondent No.2's rights in the property, and Trial Court rightly rejected the application considering overall dispute.
Ratio Decidendi
Under Order 23 Rule 1 CPC, a plaintiff has an unconditional right to withdraw a suit against any defendant at any stage, and the court cannot refuse such withdrawal if it is unconditional. The consent terms between the plaintiff and defendant no.1 do not affect the rights of defendant no.2 when the withdrawal against defendant no.2 is unconditional.
Judgment Excerpts
The Learned Counsel Mr. Dalvi relying upon Order 23 Rule 1 of the CPC would contend that the Plaintiff would be entitled to withdraw the Suit against any of the parties and at any stage of the Suit.
The Plaintiff cannot be persuaded to litigation against a party against whom he does not desire to so prosecute.
Procedural History
Petitioner filed suit for declaration and perpetual injunction in Civil Judge Senior Division, Kalyan. On 15-04-2011, petitioner filed application for withdrawal of suit against Respondent No.2 and for consent decree. Trial Court rejected consent terms on 22-11-2012 and withdrawal application on 23-11-2012. Petitioner filed Writ Petition No. 561 of 2013 under Article 227 of the Constitution of India challenging both orders.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 23 Rule 1, Order 23 Rule 3
- Constitution of India: Article 227
