Order 23 of cpc 1908
sandeep rane
(Querist) 28 April 2012
This query is : Resolved
1.What can be the solid reason(Acceptable to court) to withdraw Civil suit to file fresh on same cause of action ?we had applied to court saying that all parties are joint in suit therefore we desire to withdraw this suit and file fresh in respect of this on same cause action.But court said order 23 does not allow withdraw on this reason.
2.can proposed defendant who is not been added as defendant take objection to our withdrawal of civil case to file fresh one ?
Please guide we have to give reason on next date as to why to withdraw suit .if we fail we have to proceed with this suit helplessly .
Devajyoti Barman
(Expert) 28 April 2012
1. Only on new cause cause of action. Filing of suit on same cause of action is barred.
2. No
You can withdraw and file a new suit on the same cause of action if the court gives you such liberty.
So convince the court to give such liberty/leave.
Adv.R.P.Chugh
(Expert) 28 April 2012
1. Qualified Withdrawal i.e Withdrawal with liberty to file suit on the same cause of action - is allowed only when the suit suffers from a formal defect or a cause of like nature.
Formal Defect is anything technical that does not go into the merits of the matter, but concerned with procedural niceties.
Cause of Like nature is to be construed ejusdem generis, eg : Non joining of Proper Party is one such case where the court may allow (though court may implead in the same case also by resort to O 1 R10) (This is not applicable to non joinder of necessary party which is something that hits at the very root and competency of court to pass decree)
I didn't quite understand your reason to insist on qualified withdrawal in the present case, reframe it, if you may.
2. No, any person not impleaded yet - who is proposed to be impleaded in the suit to be re-filed can't object here.
Hope this helps !
prabhakar singh
(Expert) 28 April 2012
1.IN ANSWER COURT IS WRITE.
2.IF HE HAS BEEN SOUGHT TO BE ADDED,IN MY VIEW ,HE CAN.
Dr J C Vashista
(Expert) 29 April 2012
Being master of your suit you can withdraw your suit at any time however,you cannot be given liberty to re-file on the same cause of action
sandeep rane
(Querist) 30 April 2012
Our suit is not filed properly i.e. it does not contain all the facts of the case and also it has typing mistake such as description of the room is not there.prayer is not proper .therefore we had taken chamber summons no.A to add three parties in the suit (we have already three party of one is died ) but at the time of order on this chamber summon no A mistake in decription of room addres found therefore we withdraw this chamber summons and file new No B to make changes which were in no A along with to rectify mistake of room address.court allow this chamber summons no B but at the time of carrying out this changes name of proposed defendant no 4 was not there in chamber summon no B and therefore we could not carry out this amendment and therefore court proceed this matter for evidence and now proposed defendant no 5 is taking objection to our withdrawal
Shonee Kapoor
(Expert) 01 May 2012
Be careful in filing suits.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
M V Gupta
(Expert) 02 May 2012
Strange! How so many mistakes have been committed while filing the suit/chamber summons? Move another chamber summons to implede fourth defendant before the next date of hearing and try your luck.
