Case Note & Summary
The petitioners, who were the original plaintiffs in a civil suit, filed a writ petition challenging the order of the learned 5th Joint Civil Judge, Senior Division, Nashik dated 15th July 2014, by which their application (Exhibit 284) for withdrawal of the suit was rejected. The suit was filed for specific performance of a contract and other reliefs. The petitioners sought to withdraw the suit unconditionally, i.e., without liberty to file a fresh suit. The trial court rejected the application on the ground that other defendants had already filed their written statements and issues were framed. The High Court, in its writ jurisdiction, examined the provisions of Order 23 Rule 1 of the Code of Civil Procedure, 1908. The court noted that under Order 23 Rule 1, a plaintiff may withdraw the suit at any time after the institution of the suit, but if the withdrawal is sought after the settlement of issues or after the defendant has filed a written statement, the court may impose conditions, including requiring the plaintiff to obtain leave to file a fresh suit. In the present case, since the written statements were filed and issues were framed, the trial court had the discretion to refuse unconditional withdrawal. The High Court held that the trial court's order was justified and did not warrant interference. The court further observed that allowing the withdrawal without liberty would amount to an abuse of the process of the court, as it would enable the petitioners to file a fresh suit on the same cause of action, thereby circumventing the bar of res judicata. The writ petition was dismissed, and the rule was discharged. No order as to costs.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order 23 Rule 1 CPC - Application for withdrawal without liberty to file fresh suit - Trial court rejected application on ground that other defendants had filed written statements and issues were framed - Held that withdrawal without leave is permissible only before settlement of issues or when no other defendant has filed written statement; here, since written statements were filed and issues framed, court's refusal was justified (Paras 2-5). B) Civil Procedure - Abuse of Process - Withdrawal of suit - Petitioners sought to withdraw suit to file fresh suit on same cause of action - Held that such withdrawal would amount to abuse of process of court as it would allow petitioners to circumvent the bar of res judicata and re-litigate the same issues (Para 5).
Issue of Consideration
Whether the trial court was justified in rejecting the application for withdrawal of the suit without liberty to file a fresh suit, and whether the petitioners are entitled to withdraw the suit unconditionally.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order rejecting the application for withdrawal of the suit. The rule was discharged. No order as to costs.
Law Points
- Order 23 Rule 1 CPC
- Withdrawal of suit
- Leave to file fresh suit
- Abuse of process of court
- Right to sue
