Withdrawal of the suit under Order 23 CPC || Consequences of withdrawal ||
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Withdrawal of the suit under Order 23 CPC || Consequences of withdrawal ||
In this article, we will discuss the withdrawal of the suit under Order 23 of the Civil Procedure Code 1973. And we will also discuss the consequences of the withdrawal.etc.
Introduction:-
Whenever we institute a suit in the court, but after the institution of the suit if our mind changed, then what will be the option for us, can we withdraw our suit or not, if yes then under which provisions or procedure.
The answer is here, yes we can withdraw the suit under the Code of Civil Procedure 1973. Order 23 of the Code provides the provision for the withdraw of the suit.
The suit can be withdrawn under two circumstance. Both are deals with the permission/ leave of the court. Now we will discuss it in detail below.
The withdrawal of the suit can be made by the plaintiff or by the Court suo motu.
Withdrawal of the suit:-
Withdrawal of the suit or abandonment of claim are two types
1. Withdrawal of the suit without permission or leave of the court means (absolute withdrawal)
2. withdrawal of the Suit or part of the claim with permission of the court means (qualified withdrawal)
a. Withdrawal without leave of Court Rule 1 (1), (4)
Rule 1(1) of the order provides for withdrawal of the suit without leave of the court. Under this order, the plaintiff may abandon his suit or part of his claim against all or any of the defendants without the leave of the court, at any time after the institution of the suit. It is the absolute and unqualified right and the court cannot refuse permission to withdraw a suit and compel the plaintiff to proceed with it unless any vested right comes into existence before such prayer is made.
=> Can plaintiff institutes a fresh suit after such withdrawal? :-
A suit withdraws by the plaintiff, without any leave or permission of the court, he cannot institute fresh suit in respect of the same subject matter.
b. Withdrawal with leave of court Rule 1 (3):-
Under this Rule if the court is satisfied that a suit must fail by the reason of some formal defect, or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of the claim, it may grant permission to withdraw such suit or part on such terms as it thinks fit. It is the discretionary power of the court. It can be granted by the court on the application or even suo motu.
=> Can plaintiff institutes a fresh suit after such withdrawal? :-
Where the plaintiff withdraws the suit with the permission of the court, then he can institutes a fresh suit the same subject matter.
Withdrawal by one of the plaintiffs Rule 1(5):-
In case of more than two plaintiffs in a suit cannot be withdrawn without the consent of all the plaintiffs. One plaintiff may only withdraw from the suit to the extent of his own interest in it.
Limitation; Rule 2 :-
In case of withdrawal, the law of limitation will apply in the same as if the suit has not been filed at all.
Appeal:-
An order regarding the withdrawal of the suit with permission to file fresh suit on the same cause of action is neither a decree nor an appealable order. Hence, no appeal lies against such order.
Revision:-
An order regarding the withdrawal of the suit with permission to file fresh suit on the same cause of action can be said to be a “case decided” under Section 115 of the Code. Hence, such an order is revisable.
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