Case Note & Summary
The petitioner, Ahemadbee Ashrafmiya Shaikh, was the original defendant No. 2 in Regular Civil Suit No. 26 of 2005 filed by respondent No. 1, Yusuf Faijusab Sayyed, in the court of Civil Judge, Junior Division, Chakur, District Latur. The suit sought declaration and injunction regarding agricultural lands bearing Gut Nos. 181 and 205 at village Dapkyal. The defendants appeared and filed written statements resisting the claim. During the pendency of the suit, the plaintiff filed an application (Exhibit 99) seeking withdrawal of the suit with liberty to file a fresh suit on the same cause of action under Order XXIII Rule 1 of the Code of Civil Procedure, 1908. The trial court allowed the application by order dated 20-10-2012, subject to payment of costs of Rs. 500 to the defendants. The petitioner-defendant challenged this order in the High Court, contending that the plaintiff was attempting to abuse the process of law by withdrawing the suit to circumvent an adverse order likely to be passed. The High Court examined the trial court's order and found that the trial court had recorded that the suit suffered from formal defects and that the plaintiff had sufficient grounds for withdrawal. The High Court held that the discretion exercised by the trial court was not perverse or arbitrary, and that no abuse of process was established. The petition was dismissed, and the trial court's order was upheld.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order XXIII Rule 1 CPC - Liberty to File Fresh Suit - The trial court allowed the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action, finding that the suit suffered from formal defects and that the plaintiff had sufficient grounds for withdrawal. The High Court upheld the order, holding that the discretion exercised by the trial court was not perverse or arbitrary, and that no abuse of process was established. (Paras 1-10) B) Civil Procedure - Abuse of Process - Order XXIII Rule 1 CPC - The petitioner-defendant alleged that the plaintiff was attempting to abuse the process of law by withdrawing the suit to circumvent an adverse order. The High Court found no evidence of abuse, as the trial court had recorded reasons for granting liberty, and the plaintiff had paid costs as directed. (Paras 5-10)
Issue of Consideration
Whether the trial court was justified in allowing the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action under Order XXIII Rule 1 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 20-10-2012 allowing the plaintiff to withdraw the suit with liberty to file a fresh suit, subject to payment of costs.
Law Points
- Withdrawal of suit with liberty to file fresh suit
- Order XXIII Rule 1 CPC
- abuse of process of law
- formal defect
- sufficient grounds
