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A plaintiff is at liberty to withdraw from a suit at any time (subject to any order as to costs that the Court may pass), but if he wishes to reserve his right to sue again, he must obtain permission of the Court under Order XXIII, Rule I, 1. Permission can only be granted on the grounds specified in the rule. The words “other sufficient grounds” have been interpreted to mean grounds of the same nature as the grounds specified in clause (a) of sub-rule 2 of Rule 1 of the Order. The mere fact that plaintiff has not been able to produce adequate evidence to establish his case is no justification for granting permission under this rule. 2
In R. Ramamurthi Iyer v. v. Raja V. Rajeswara Rao3 The court referred Hulas Rai Baij Nath v. Firm K. B. Dass & Co.(2) a suit for rendition of accounts had been filed. The defence was that the accounts had been settled before any preliminary decree for rendition of accounts was passed. The plaintiff applied for withdrawal of the suit. This Court held that there was no ground on which the court could refuse to allow withdrawal of the suit because no vested right in favour of the defendant had come into existence at the point of time when withdrawal was sought. And thus the court held, “On
behalf of the appellant it has been contended that under O.23, R. 1 there is an unqualified
right to withdraw the suit if the plaintiff does not wish to proceed with it. It is conceded that if any vested right comes into, existence before the prayer for withdrawal is made the court is not bound to allow withdrawal; but it is suggested that this can happen only in very limited circumstances i.e., where a Preliminary decree decree had been passed or in those cases whether a set off has been claimed or a counter claim has been made. According to the appellant no preliminary decree bad been passed in the present suit and thus no vested right had come into
Civil Procedure Code, 1908 CHAPTER 13 “Transfer “Transfer and Withdrawal of www.delhihighcourt.nic.in/Cou www.delhihighcourt.nic.in/CourtRules rtRules PDF 3 Supreme Court of India, 1973 AIR 643, 1973 SCR (1) 904 1 2
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existence in favour of the defendant. There was no question of any counter claim or set off and therefore the trial court was fully justified in allowing withdrawal of the suit .”
In Thammanna v. K. Veera Reddy & Ors4 the Court held that, “Under
Order XXIII, Rule 1 of the code of Civil Procedure, an appellant has the right to
withdraw his appeal unconditionally, and if he is to make such application, the High Court has to grant it.”
Rule 1 of Order XXIII covers two types of cases (i)
Where the plaintiff withdraws a suit or part of a claim with the permission of the Court to bring in fresh suit on the same subject matter and;
(ii)
Where the plaintiff withdraws a suit without the permission of the Court.
Opinion: With due consideration to the above mentioned judgments and legal provisions the petitioner or appellant have a right to withdraw the appeal or suit filed.
4 Supreme Court Of India, 1981 AIR 116, 1981 SCR (1) 73
