Withdrawl of appeal

Arvind Singh Chauhan (Querist) 13 February 2012 This query is : Resolved
Sir whether withdrawal of appeal is possible with permission to file fresh appeal?

while in Order 23 only suit word is used, suit has been already decided by lower court.

Plz Suggest the points against the withdrawal of appeal.

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Raj Kumar Makkad (Expert) 13 February 2012
Appeal cannot be withdrawn with the permission to file afresh.

Devajyoti Barman (Expert) 13 February 2012
In stead of trying to withdraw the aappeal, you can seek to amend the memorendum of appeal which is permissible.

Adv.R.P.Chugh (Expert) 13 February 2012
Order 23 does apply to appeals - appeal is always a continuation of the suit hence it applies. Appellant has an unqualified right to withdraw. Even the suit can be withdrawn in an appeal provided the same does not prejudice the other party. Though there is no precedent - whether court can allow withdrawal of appeal with liberty to file fresh appeal - should be allowed - there is nothing in O. 23 R1(3) that bars it

adv. rajeev ( rajoo ) (Expert) 13 February 2012
it cannot be.

Arvind Singh Chauhan (Querist) 13 February 2012
Thanks to all learned contributors. Can any body cite any case law that " appeal can not be withdrawn with permission to file fresh appeal"

How should I satisfy the presiding officer, whether citing plain reading of order 23 would be enough. Plz suggest.

Highly obliged.

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