Order 23 rule 1
baljit singh
(Querist) 18 September 2012
This query is : Resolved
plaintiff has absolute right to withdraw the suit filed by him unconditionally at any stage. But when plaintiff prosecute the defendants til the end of the suit and finding that the defense of the defendant has substantiated and at the stage of arguments in order to avoid any adverse findings, make statement for the withdrawal of the suit.
Now since the defendant has to under go the traumatic experience of court litigation and has spend much amount in defending the false and frivolous litigation.
Should the court simply allow the withdrawal of the suit or it should burden the plaintiff with examplery costs for wasting the time of the court and forcing the defendant to undergo for an uncalled for litigation.
suggest any case law for imposing costs for such a withdrawal even if it is unconditional one.
baljit singh advocate
ajay sethi
(Expert) 18 September 2012
Order 23, Rule 1 C.P.C. Order 23, Rule 1(1) and (3) are in the following terms : "Sub-rule (1) :
At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. Sub-rule (3):
Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
Dealing with the scope of Order 23 Rule 1, C.P.C. Sadasiva Aiyar J. delivering the judgment of the Bench in Lakshmanan Chetty v. Muthaya Chetty, 40 Mad. LJ 126 at p. 137 held as follows:
"Order 23, R. 1 of the Civil Procedure Code related to withdrawal of suits. So far as an unconditional withdrawal is concerned, it is of course wholly at the option of the plaintiff and the court has nothing to do with it except as regards providing for costs already incurred (See Order 23 Rule 1 Clause I). It is only where he wants some permission that he has to make an application under Clause 2
ajay sethi
(Expert) 18 September 2012
The learned Judges held in ILR 57 Mad 892: (AIR 1934 Mad 337), that the court does not become functus officio the moment the plaintiff announces the fact of withdrawal. Referring to the decision of the Calcutta High Court in Rant Churn Bysack v. Mrs. Ripsimah Harmi, 10 Suth W. R. 373 the learned Judges observed that the decision should not be carried too far to lead to the position that the court is deprived of all jurisdiction over the case, so that it would not even pass an appropriate order indicating the disposal of the suit.The learned Judges expressed the opinion that as the court had still to pass an order regarding costs under Order 23 Rule 3 C.P.C. it ought not to be held that the suit is terminated as soon as the plaintiff announces his intention to withdraw it.
