Sunday, 25 September 2016

When suitor has absolute right to withdraw his suit?

While reading the aforestated provision, we are in
agreement with Sri Vedula Venkataramana, learned senior 
Advocate.  It is the absolute right of the suitor as the suitor can
bring his lis of his own choice and wishes. Neither the Court nor
anyone else can compel any person to come to the Court.  With the 
parity of reasoning after having brought action, the litigant decides
not to continue with his lis, such decision is final and no one can
sit on that claim.  We feel that asking for leave is only matter of
courtesy and respect and grant of leave is matter of course not of
discretion and it is manifest in Clause (b) sub-Rule (3) of Rule 1 of
the Code, wherein words may grant are employed.  If the suitor
wants to bring fresh action on the self-same cause of action while
asking for withdrawal of lis, then the power to allow such prayer is
left with discretion of the Court and not with choice of the suitor.
In other words, the suitor cannot claim, as a matter of right, the
liberty to bring a fresh action on the self-same cause of action.
Clause (b) sub-Rule (4) of Rule 1 of the Code wherein like Clause
(b) sub-Rule (3) of Rule 1 of the Code words may grant
permission are not mentioned.
        5.  However, in the case of litigation under Rule 8 Order 1 of
the Code, prayer for withdrawal is dealt with slightly in a different
way, even in certain situation in these cases the Court has power
to continue with proceedings even if original party does not want to
proceed.
        6. If impugned order refusing leave to withdraw the lis stands,
it would amount to encouragement of proliferation of the litigation.
The approach of the Court, as is well known, would be to
discourage filing of unnecessary, vexatious and frivolous litigation.
For any reason, if the suitor feels that the litigation is unnecessary,
it is not for the Court to insist that the suitor remains with the lis.
With great respect, we are therefore unable to subscribe to the
views expressed by the learned trial Judge.
        7. Of course, after wasting the Courts time, money and
energy, when a suitor withdraws the lis, the Court has ample
power to award costs as it would be clear from the language of
Clause (b) of sub-Rule (4) of Rule 1 of Order 23 of the Code wherein
words shall be liable for such costs as the Court may award are
employed. 
HYDERABAD HIGH COURT

                 
WRIT APPEAL NO.730 OF 2014      
                        
Dated:12-06-2014 

M. Subba Rao 
V
B. Vasanth and others 


THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI         
SENGUPTA    
 AND 
THE HONBLE SRI JUSTICE SANJAY KUMAR         



        This appeal is admitted in so far as the order under appeal
relates to disposal of W.P. No.1657 of 2014.  We do not require any
notice to be served upon the writ petitioner/the first respondent as
he would not be affected by the judgment and order proposed to be
passed by us.  The recordings of the Honble trial Judge are good
enough to decide the matter at this stage finally.  It is the admitted
position that after conclusion of the hearing, the writ petitioner
tried to withdraw the writ petition, but permission was declined by
the Honble trial Judge.  Therefore, the question arises as to
whether refusal to allow withdrawal is a proper exercise of
jurisdiction under Order 23 Rule 1 of the Code of Civil Procedure
(the Code).
        2. Sri Vedula Venkataramana, learned senior Advocate,
argued that assertion of the right of withdrawal of any suit by a
suitor is not dependent upon the mercy of the Court.  If the
provision of the above Code is read carefully and meaningfully, it
would appear that such an exclusive right has been given to the
suitor. Asking for leave to withdraw is a matter of courtesy and
respect to the Court and it is not intended to give the Court a
power to exercise discretion.
        3. In the context of the argument, we feel that the provisions
of Order 23 Rule 1 of the Code are required to be set out for better
understanding.
        1. Withdrawal of suit or abandonment of part of claim.(1) At
any time after the institution of a suit, the plaintiff may as against all or
any of the defendants abandon his suit or abandon a part of his claim:
        Provided that where the plaintiff is a minor or other person to whom
the provisions contained in Rules 1 to 14 of Order XXXII extend, neither
the suit nor any part of the claim shall be abandoned without the leave of
the Court.
        (2) An application for leave under the proviso to sub-rule (1) shall be
accompanied by an affidavit of the next friend and also, if the minor or
such other person is represented by a pleader, by a certificate of the
pleader to the effect that the abandonment proposed is, in his opinion, for
the benefit of the minor or such other person.
                (3) Where the Court is satisfied,
                (a) that a suit must fail 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 a suit or part of a
claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to
withdraw from such suit or such part of the claim with liberty to institute a
fresh suit in respect of the subject-matter of such suit or such part of the
claim.
                (4) Where the plaintiff
                (a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission
referred to in sub-rule (3),
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.
        Nothing in this rule shall be deemed to authorise the Court to permit
one of several plaintiffs to abandon a suit or part of a claim under sub-rule
(1), or to withdraw, under sub-rule (3), any suit or part of a claim, without
the consent of the other plaintiffs.

        4. While reading the aforestated provision, we are in
agreement with Sri Vedula Venkataramana, learned senior 
Advocate.  It is the absolute right of the suitor as the suitor can
bring his lis of his own choice and wishes. Neither the Court nor
anyone else can compel any person to come to the Court.  With the 
parity of reasoning after having brought action, the litigant decides
not to continue with his lis, such decision is final and no one can
sit on that claim.  We feel that asking for leave is only matter of
courtesy and respect and grant of leave is matter of course not of
discretion and it is manifest in Clause (b) sub-Rule (3) of Rule 1 of
the Code, wherein words may grant are employed.  If the suitor
wants to bring fresh action on the self-same cause of action while
asking for withdrawal of lis, then the power to allow such prayer is
left with discretion of the Court and not with choice of the suitor.
In other words, the suitor cannot claim, as a matter of right, the
liberty to bring a fresh action on the self-same cause of action.
Clause (b) sub-Rule (4) of Rule 1 of the Code wherein like Clause
(b) sub-Rule (3) of Rule 1 of the Code words may grant
permission are not mentioned.
        5.  However, in the case of litigation under Rule 8 Order 1 of
the Code, prayer for withdrawal is dealt with slightly in a different
way, even in certain situation in these cases the Court has power
to continue with proceedings even if original party does not want to
proceed.
        6. If impugned order refusing leave to withdraw the lis stands,
it would amount to encouragement of proliferation of the litigation.
The approach of the Court, as is well known, would be to
discourage filing of unnecessary, vexatious and frivolous litigation.
For any reason, if the suitor feels that the litigation is unnecessary,
it is not for the Court to insist that the suitor remains with the lis.
With great respect, we are therefore unable to subscribe to the
views expressed by the learned trial Judge.
        7. Of course, after wasting the Courts time, money and
energy, when a suitor withdraws the lis, the Court has ample
power to award costs as it would be clear from the language of
Clause (b) of sub-Rule (4) of Rule 1 of Order 23 of the Code wherein
words shall be liable for such costs as the Court may award are
employed.  In this case, the Honble trial Judge has decided not to
award any costs.  We are therefore not doing so.  Accordingly,
while allowing the appeal, we hold that the judgment and order
impugned would not be applicable to the above writ petition.  The
said writ petition is dismissed as being withdrawn.  Pending
miscellaneous petitions in the writ appeal shall stand closed.  No
costs.
______________________    
K.J. SENGUPTA, CJ   
____________________   
SANJAY KUMAR, J         
12-06-2014

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