Allowed¶41

Noufal v. Soman

Kerala HC5 Mar 2025OP(C)/1395/2018

Case brief

AI extract

What is this about?

Keywords: withdrawal of suit; Order XXIII Rule 1 CPC; sub-rule (3); sub-rule (4); sub-rule (5); conditional withdrawal application; liberty to file fresh suit; withdrawal in part; plaintiff's written consent; several plaintiffs; Kerala High Court Ernakulam; OP(C) 1395/2018; Additional Munsiff Alappuzha; I.A. 1087/2018; O.S. 144/2018; restoration of suit; Mary Teacher and Others v. K.J.Varghese 2017 (1) KHC 830.

What did the court decide?

Impugned order dated 25.05.2018 in I.A.No.1087/2018 in O.S.No.144/2018 set aside; suit restored on file; trial court directed to expedite disposal of the suit within three months from the next posting date; all issues left open for consideration. ¶41

Noufal Vs Soman — Kerala HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether it is permissible to allow an application submitted for withdrawal of suit in part by rejecting (denying) the liberty to file a fresh suit.

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Court's answer

Under sub-rule (4) of Rule 1 of Order XXIII C.P.C., a plaintiff is precluded from instituting a fresh suit in respect of the same subject matter or any part of the claim withdrawn without reserving liberty, unless leave was granted in accordance with sub-rule (3).

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Ratio / Principle

An application seeking withdrawal of the suit with liberty to file a fresh suit cannot be allowed by denying the liberty to a fresh one; it can only be either dismissed or allowed in toto, and not in part.

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Key takeaways

A conditional application seeking leave under sub-rule (3) of Rule 1 of Order XXIII C.P.C. is an exception to the general principle and cannot be allowed or dismissed in part; unless consented to by the plaintiff, no order in part can be granted allowing withdrawal of the suit without the grant of leave to file a fresh suit.ratio¶39
On a conjoint reading of sub-rules (3) and (4) of Rule 1, Order XXIII C.P.C., the plaintiff may seek withdrawal of the suit either in whole or in part with liberty to file a fresh suit; where the court finds that no such liberty can be granted, withdrawal without such liberty is not permissible unless consented to by the plaintiff in writing after recording the non-grant of liberty.ratio¶39

Detailed headnote1 paragraphs

Withdrawal of suit - Order XXIII Rule 1 C.P.C. - conditional application for withdrawal with liberty to file a fresh suit - such an application cannot be allowed in part by denying the liberty to file a fresh suit; it must be either dismissed or allowed in toto - leave under sub-rule (3) is an exception to the bar imposed by sub-rule (4) on filing a fresh suit on the same subject matter - withdrawal without liberty impermissible unless the plaintiff consents in writing after recording the non-grant of liberty - Kerala High Court (Ernakulam), P. Somarajan J, 12.07.2023, OP(C) No.1395 of 2018 - order of the Additional Munsiff, Alappuzha dated 25.05.2018 in I.A.No.1087/2018 in O.S.No.144/2018 set aside; suit restored on file; trial court directed to expedite disposal within three months; all issues left open.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 12^th DAY OF JULY 2023 / 21ST ASHADHA, 1945

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OP(C) NO. 1395 OF 2018

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AGAINST THE ORDER DATED 25.05.2018 IN I.A.No.1087/18 IN OS

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144/2018 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA

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PETITIONERS/PETITIONERS/DEFENDANTS:

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1 NOUFAL, AGED 55 YEARS, S/o MUHAMMED KUNJU, MADEENA MANZIL, THAMPAKACHUVADU, ALAPPUZHA.

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2 SHABNA, AGED 30 YEARS, S/o NOUFAL, MADEENA MANZIL, THAMPAKACHUVADU, ALAPPUZHA.

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3 SHAMNAD, AGED 30 YEARS, S/o NOUFAL, MADEENA MANZIL, THAMPAKACHUVADU, ALAPPUZHA.

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4 SHAHIN, AGED 29 YEARS, S/o NOUFAL, MADEENA MANZIL, THAMPAKACHUVADU, ALAPPUZHA.

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BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA

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RESPONDENT/COUNTER PETITIONER/PLAINTIFF:

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SOMAN, S/o KESAVAN, VELAMPARAMBU VELIYIL, NORTH ARYADU.P.O., ALAPPUZHA DISTRICT -688 538. BY ADVS. SRI.T.JAYAKRISHNAN SRI.R.KRISHNAKUMAR (CHERTHALA)

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THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 12.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) No.1395 of 2018

JUDGMENT

The cardinal question came up for consideration is

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whether it is permissible to allow an application

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submitted for withdrawal of suit in part by rejecting the liberty to file a fresh one.

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This Court in Mary Teacher and Others v. K.J.Varghese (2017 (1) KHC 830) had the occasion to

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consider as to under what circumstances a withdrawal of suit can be permitted and what are the requirements. But

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the question involved in the instant case is entirely different. The trial court did not grant liberty to file a fresh suit, though withdrawal was granted overlooking

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the fact that the application is a conditional one seeking permission to file a fresh one and to allow withdrawal of the pending suit.

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The mandate under Rule 1 of Order XXIII C.P.C.

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is resting on the free volition of the plaintiff/s, who

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OP(C) No.1395 of 2018 3

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have instituted the suit, but subject to the restriction imposed under sub-rule(5), which says that when there are several plaintiffs, the court cannot permit withdrawal of suit or any part of claim unless consented to by all the plaintiffs. Sub-rule(4) of Rule 1 of Order XXIII C.P.C. precludes the party (plaintiff) from instituting a fresh suit in respect of same subject matter or any part of claim, which was allowed to be withdrawn without reserving the liberty to a fresh one. Necessarily, the restriction imposed under sub-rule (4) of Rule 1 of Order XXIII C.P.C. would preclude the plaintiff from bringing up another suit on the same subject and cause of action, unless leave was granted in accordance with sub-rule (3) of Rule 1 of Order XXIII

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C.P.C.. Hence, an application submitted seeking to

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withdraw the suit with liberty to file a fresh one

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cannot be allowed by denying the liberty to a fresh one. It can only be either dismissed or allowed in toto and

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not in part, otherwise it would destruct the very right of party to proceed with the suit. A conditional application submitted seeking leave under sub-rule(3) of

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OP(C) No.1395 of 2018 4

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Rule 1 of Order XXIII C.P.C. is an exception to the

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general principle and it cannot be allowed or dismissed in part, especially when it is within the realm of

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plaintiff to decide as to whether he should go with the suit or not in the event of non-grant of liberty to file a fresh one. Necessarily, unless it was consented to by the plaintiff, no such order in part can be granted while allowing withdrawal of suit without the grant of leave to a fresh one. A conjoint reading of sub-rule (3) and (4) would make it clear that the plaintiff can seek withdrawal of the suit either in whole or in part with liberty to file a fresh one. When the court found that no such liberty can be granted, it is not permissible to allow withdrawal without such liberty, unless consented to by the plaintiff in writing after recording the non-

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grant of liberty. The order passed by the trial court cannot be sustained in view of the provisions contained in Order XXIII Rule 1 C.P.C., hence will stand set aside

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by restoring the suit on file. There will be a direction to the trial court to expedite the disposal of the suit within a period of three months from the next

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OP(C) No.1395 of 2018

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posting date. All issues are left open for

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consideration.

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Sd/-

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P.SOMARAJAN JUDGE

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OP(C) No.1395 of 2018

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APPENDIX OF OP(C) 1395/2018

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PETITIONERS' EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE PLAINT IN O.S.NO.144/2018 FILED BY THE RESPONDENT BEFORE THE MUNSIFF'S COURT, ALAPPUZHA.
EXHIBIT P2	TRUE COPY OF THE ORDER IN I.A.NO.814/2018 IN O.S.NO.144/2018 DATED 05/03/2018 OF THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P3	TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.144/2018 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P4	TRUE COPY OF THE I.A. NO.1087/2018 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, ALAPPUZHA DATED APRIL 2018.
EXHIBIT P5	TRUE COPY OF THE O.S.NO.605/2013 FILED BY THE 1ST PETITIONER AND ANOTHER BEFORE THE MUNSIFF COURT, ALAPPUZHA DATED NIL.
EXHIBIT P6	TRUE COPY OF THE JUDGMENT IN O.S.NO.605/2013 OF THE PRINCIPAL MUNSIFF, ALAPPUZHA DATED 09/04/2014.
EXHIBIT P7	TRUE COPY OF THE O.S.NO.540/2014 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, ALAPPUZHA DATED 28/06/2014.
EXHIBIT P8	TRUE COPY OF THE ORDER IN I.A.NO.4796/2017 IN O.S.NO.540/2014 DATED 21/11/2017 OF THE ADDITIONAL MUNSIFF, ALAPPUZHA.
EXHIBIT P9	TRUE COPY OF THE ORDER OF THE ADDITIONAL MUNSIFF, ALAPPUZHA IN I.A.NO.1087/2018 IN O.S.NO.144/2018 DATED 25/05/2018.

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// TRUE COPY //

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P.S. TO JUDGE

Noufal v. Soman

Case brief

What is this about?

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Noufal v. Soman

Case brief

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