Suit for declaration
Adv B.B.Gambhir #9814820602
(Querist) 18 June 2018
This query is : Resolved
i moved an application in civil suit for withdraw of suit with liberty to file fresh suit and also suffered the statement in the court. but the court passed the following order
"in view of statement of the plaintiff and application, the suit is hereby dismissed as withdrawn"
then i filed fresh suit on same cause of action. the opposite party raised the objection that the specific order regarding liberty to file fresh suit has not been passed.
whether silence of the court amount to grant of liberty or not. what are your views if negative then what should i do now if positive then cite some law.
Vijay Raj Mahajan
(Expert) 19 June 2018
Yes, right to file fresh suit not barred by doctrine of res judicata because the previous suit was withdrawn and was not decided by the court on merits with regards to issues in dispute involved between both parties. The objection of opposite party not maintainable.
K Rajasekharan
(Expert) 19 June 2018
As per O 23 R 1, if the plaintiff withdraws a suit without seeking or obtaining permission from the court to file fresh suit on the same cause of action, filing a fresh suit on the same cause of action is clearly barred as per a 2004 judgment at https://indiankanoon.org/doc/1596739/
However, there is another view that an application under Rule 1 of Order 23 cannot be dissected into two separate portions and a relief of permission to withdraw the suit cannot be granted without granting relief to file a fresh suit.
Which one of above two views survives is to be examined based on later decisions.
Kumar Doab
(Expert) 19 June 2018
You can benefit from the above..
Ms.Usha Kapoor
(Expert) 20 June 2018
AS THE PREVIOUS CASE WAS DISMISSED AS WITHDRAWN. SO NO RESJUDICATA APPLIES.previous SUIT WAS NOT DECIDED ON MERITS,. HENCE THE PLAINTIFF CAN FILE FRESH SUIT ON THE SAME CAUSE OF ACTION.
Guest
(Expert) 20 June 2018
I differ with the views of the experts. The order of the judge on conditional withdrawal of a suit should be specific about the condition. Silence of the judge on that issue cannot be assumed as his consent on liberty to file fresh suit.
Guest
(Expert) 20 June 2018
I differ with the views of the experts. The order of the judge on conditional withdrawal of a suit should be specific about the condition. Silence of the judge on that issue cannot be assumed as his consent on liberty to file fresh suit.
Guest
(Expert) 20 June 2018
I differ with the views of the experts. The order of the judge on conditional withdrawal of a suit should be specific about the condition. Silence of the judge on that issue cannot be assumed as his consent on liberty to file fresh suit.
ABDUL RAZIQUE
(Expert) 21 June 2018
Silence of the court not means the petitioner has no right to file a fresh suit. I agree with all experts except Dhingra Sir.
Kumar Doab
(Expert) 21 June 2018
All readers can benefit from above..
Guest
(Expert) 21 June 2018
Dear Mr. Abdul Razique,
You may or may not agree with me, but partial/defective court order was required to be got rectified by adopting due process. Silence, itself cannot be automatically be deemed as approval of the court for filing of fresh suit for the same cause of action in the absence of specific order on withdrawal of the earlier case.
In the present query the querist has mentioned about the objection of the opposite party, but omitted to make any mention, what was the decision of the court, whether objection admitted or overruled.
ABDUL RAZIQUE
(Expert) 23 June 2018
Respected Dhingra Sir
As per my knowledge, If plaintiff withdraw the plaint without the permission of court then the plaintiff loss his right to file a fresh suit and the ld court may dismissed or grant defendant objection.
Civil Procedure Code, 1908: Order XXIII, Rule 1--Applicability to cases of withdrawal of writ petitions.
Sub-rule (1) of rule 1, Order XXIII of the Code of Civil Procedure ) permits a plaintiff to abandon his suit against all or any of the defendants at any time after the institution of the suit; sub-rule (3) lays down that where the court is satisfied (a) that a suit must fall by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit, it may grant permission to him to withdraw from such suit with liberty to institute a fresh suit, while sub-rule (4) provides that where the plaintiff abandons any suit under sub-rule (1) or withdraws from it without the permission referred to in sub-rule (3), he shall be precluded from instituting any fresh suit in respect of such subject matter.
