SC: Defendant cannot Object Plaintiff’s Application for Withdrawal of Suit


December 04, 2017

Anil Kumar Singhv. Vijay Pal Singh & Ors.

Date of Judgment: November 30, 2017

In this recent judgment the Supreme Court elucidated the law relating to withdrawal of suit under Order 23 Rule 1 of the Code of Civil Procedure (CPC).   

Background of the case

In the instant case, the dispute between the parties related to land in the District of Hardoi, U.P. (hereinafter the suit land). However, according to the facts of the case later on the parties entered into a compromise wherein respondent agreed not to interfere in appellant’s possession of suit land. Pursuant to compromise, the Appellant filed an application under Order 23 Rule 1 of the CPC  to withdraw the suit. However, the Respondent opposed the application. The Trial Court allowed Appellant’s withdrawal application subject to payment of cost of Rs.350/- payable to respondent with the condition that there shall be restriction on plaintiff to bring any other further suit regarding the subject matter of present case on this cause of action.

Aggrieved by Trial Court’s order, the Respondent filed writ petition in the High Court, whereby the High Court allowed the respondent’s writ petition and set aside Trial Court’s order. The High Court also directed the appellant to place respondent in possession of the suit land and aggrieved by the same the Appellant approached the Supreme Court.

Bench’s Verdict

The Apex Court in the case allowed the appeal and set aside High Court’s order in view of the following observations:

  • That Order 23 Rule 1 of the CPC would go to show that the plaintiff has a right to file an application to abandon his suit or part thereof at any time after its filing. However, if the permission to withdraw the suit, whether full or part thereof is granted under Rule 1(3), then the plaintiff would be granted liberty to institute a fresh suit on terms as the Court may deem fit and proper to impose on the plaintiff in respect of the same subject matter of the suit or part thereof.
  • That if the permission to withdraw the suit is granted under Order 23 Rule 1(1) of the CPC read with sub-rule (4)(a) or (b) then in such event, the plaintiff would only be liable to pay cost to the defendant. However, in such situation, the plaintiff would be precluded from filing a fresh suit in respect of the same subject matter or part thereof.
  • That when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff.
  • That while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him.
  • That when the plaintiff applies for withdrawal of the suit along with a prayer to grant him permission to file a fresh suit on the same subject matter as provided in sub-rule (3) of Rule 1 then in such event, the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek withdrawal of the suit should be granted to the plaintiff and, if so, on what terms.

In view of the facts of the instant case, the Court while setting aside High Court stated that Respondent was given the liberty to raise issues relating to his ownership and possession in relation to the suit land in appropriate proceedings in accordance with law.

Other Important Cases on Withdrawal of Suit

Bijyananda v. Satrughna Sahu[1]The Plaintiff’s right under Order 23 Rule 1(1) of the CPC to withdraw suit is absolute and unqualified 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[2].

Sarguja Transport Service v. State Transport Appellate Tribunal[3]In case of withdrawal of suit or part of claim without the leave of Court, the plaintiff will be precluded from instituting a fresh suit in respect of the same cause of action.

[1] AIR 1963 SC 1566

[2] Ramamurthi v. Rajeswararao (1972) 2 SCC 721

[3] (1987)1 SCC 5