Writ petition under Article 227 challenging an order allowing the plaintiff's partial abandonment of claim under Order 23 Rule 1 CPC. The Court held a plaintiff has an absolute right to abandon part of a claim without leave to file a fresh suit, and dismissed the petition with costs.
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[2025:RJ-JP:45392]
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Writ Petition No. 17162/2025
Ashok Kumar Jain S/o Shri Shivcharan Lal Jain, Aged About 58 Years, Resident Of 21, Scheme No. 10, Alwar Tehsil District Alwar (Raj.)
----Petitioner
Versus
----Respondents
For Petitioner(s) : Mr. Ajay Shukla For Respondent(s) :
HON'BLE MR. JUSTICE MANEESH SHARMA
Order
12/11/2025
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He submits that such relinquishment is contrary to the mandate of Order 23 Rule 1 of the CPC. Learned counsel further submits that the respondent/plaintiffs have not paid the Court fee in respect of the said property, and a specific issue has been framed in this respect; therefore, the learned Court below erred in allowing such relinquishment. Accordingly, he prays that the impugned order dated 27.08.2025 may kindly be set aside.
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अतः/ाथ!नाप7 पे �र�े�नवेदनहै��/ाथ!नाप7 वादी�ी�ार��याजा�रवादी�ो उपरो8 व�9!त 3 बै:े$ हॉल, ए��ॉफी ॉप, ए���चन�ुलर�बा 287.6 +वायर मीटर�ीहदत�अपना.ेम�वदड1 ा�रने�ीइजाजत/दान�ीजावे।अ�त�ृपाहोगी।"
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application without granting any leave to file a fresh suit. Further, merely because an issue of Court fees was framed, that in itself would not be considered as a legal impediment in allowing the said application. Therefore, arguments advanced by the learned counsel for the petitioner cannot be accepted.
Firm K. B. Bass and Co.1 has elucidated on the mandate of Order 23 Rule 1 of the CPC, and has held as under:
"2.......The language of Order 23, Rule 1, sub-Rule (1), C. P. C., gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-Rule (3) of that Rule There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it......."
9. Similarly, in Smt. Kanta Devi & Ors Vs. Shri Rameshwar
Prasad & Ors.2 a Co-ordinate Bench of this Court has held as under:
"10. Having considered facts and circumstances of present case, this Court is of the considered opinion that plaintiffs have an absolute right to withdraw/ abandon their suit as a whole or in part, at any time after institution of the suit and defendants..."
1 1968 AIR(SC) 111
2 2023 1 WLC 541
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(MANEESH SHARMA),J
Seema/15
2 issues framed by the court
Whether the trial court erred in allowing the plaintiff's partial abandonment of claim under Order 23 Rule 1 CPC despite a pending issue on court fees.
Whether a defendant can resist abandonment of part of the plaintiff's claim under Article 227.
Colour shows how this judgement treated each authority
M/s. Hulas Rai Baij Nath Vs. Firm K. B. Bass and Co.Relied on¶8
1968 AIR(SC) 111 · Who else cites this
Smt. Kanta Devi & Ors Vs. Shri Rameshwar Prasad & Ors.Relied on¶9
2023 1 WLC 541
2 provisions across 2 enactments
Ashok Kumar Jain
Royal Floor Welfare Society through its Secretary Laxmikant Sharma
Siddharth Prime Foods Private Limited through promoter Siddharth Benewal
Maneesh Sharma
As recorded by the court registry
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