High Court allowed a revision challenging the rejection of an application for withdrawal of a suit. Relying on precedents establishing the plaintiff's absolute right to withdraw, the court set aside the lower court's order and remitted the matter.
Revision allowed; impugned order set aside; matter remitted to the court below to pass a fresh order.
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Neutral Citation No. - 2024:AHC-LKO:4553
Court No. - 5 Case :- CIVIL REVISION No. - 116 of 2016 Revisionist :- Udai Jheelu Hanjankar Opposite Party :- Ashok Kumar Rastogi Counsel for Revisionist :- Virendra Mishra Counsel for Opposite Party :- Pratap Singh Mehra,Rakesh Pandey
Hon'ble Abdul Moin,J.
"14. Since plaintiff is dominus litis of his case, he has right to withdraw his suit and this right would be un-qualified. From the language of Order 23 Rule 1 (1) C.P.C., it is implicit that at any time after the institution of the suit a plaintiff can abandon his suit or a part of his claim. In athe present case appellant-plaintiff had moved an application for withdrawal of suit without seeking liberty to file a fresh suit on the same cause of action. The trial Court vide its order dated 4.03.2016 allowed the application for withdrawal of suit, however, keeping in view the amount of maintenance of cost of suit, the same was allowed subject to payment of Rs. 35,000/- as cost and application for withdrawal was allowed only after payment of above cost amount. Since liberty to file fresh suit was not sought by the appellant-pliantiff, permission of trial Court was not required to withdraw the suit. The suit stood withdrawn the moment, Respondentplaintiff moved the application to that effect. Explaining the effect of moving an application for withdrawal, this Court in Smt. Raisa Sultana Begum and others Versus Abdul Qadir and others, AIR 1966 (Allahabad) page 318has held as follows:
"5. Next it is to be noted that no act is required to be done by the court to complete order effectuate plaintiffs withdrawal of his suit. There is
no provision for any act to be done in the suit by the Court for making the withdrawal effective order evenafter the withdrawal it is not even required to pass any order. Withdrawal of a suit is itself its end. A plaintiff withdrawing his suit is liable for such cost as the Court may award; so the Court is empowered to pass an order only in respect to the costs. The liability for cost arises out of the plainitiff's withdrawing his suit; the suit has been withdrawn and secondly he becomes liable. The Courts order awarding costs against him is a consequence of the withdrawal, which means that the withdrawal is already complete and effective." "
"3. The plaintiff in a suit is dominus litus. He has paid court fee of the suit. Hence as held by the Division Bench decision in Smt. Ratsa Sultana Begam v. Abdul Qadir he has an absolute right to withdraw his suit at any time before the judgment is delivered, vide Order XXIII, Rule 1, C.P.C. It has been observed there that since withdrawing a suit is a unilateral act on the part of the plaintiff and requires no permission or order of the Court and is not subject to any condition ; it becomes effective as soon as it is done just as a compromise does. On withdrawal certain orders may be passed by the Court but they are not for giving effect to the withdrawal, but to give effect to consequences arising out of the withdrawal. The position is clear from a bare perusal of Order XXIII, Rule 1 (1), C.P.C."
Court below to pass a fresh order on the application filed by the revisionist under Order 23 Rule 1 CPC after considering the objections as filed by the defendant and after hearing all parties concerned, without being influenced by any of the observations made above which have only been made for consideration for deciding the instant revision .
Order Date :- 17.1.2024 Mohit Singh/-
Digitally signed by :- MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench
1 issue framed by the court
Whether the court can reject an application for withdrawal of a suit filed under Order 23 Rule 1 CPC without seeking liberty to file a fresh suit.
Colour shows how this judgement treated each authority
Smt. Reena Dwivedi Vs. Awadhesh KumarRelied on¶10
Smt. Reena Dwivedi Vs. Awadhesh Kumar reported in 2017 LCD 1814
Sheikh Khalikuzzama Vs. Sheikh AkhtaruzzamaRelied on¶10
Sheikh Khalikuzzama Vs. Sheikh Akhtaruzzama reported in 2004 All. Law Reporter 368
Raisa Sultana Begum Vs. Abdul QuadirRelied on¶10
Raisa Sultana Begum Vs. Abdul Quadir reported in 1965 LawSuit (All) 125
Smt. Mamta Dubey Vs. Rajesh DubeyRelied on¶10
Smt. Mamta Dubey Vs. Rajesh Dubey reported in 2009 LCD 1175
1 provisions across 1 enactments
Udai Jheelu Hanjankar
Ashok Kumar Rastogi
Abdul Moin
As recorded by the court registry
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