Sunday, 12 March 2017

When court should permit withdrawal of suit with liberty to file fresh suit?

The provision of Order XXIII, Rule (1) of the Civil Procedure of
Code, 1908 (for short “CPC”) gave power to the court to allow the plaintiff
at any point of time to withdraw his suit unconditionally or to withdraw
from the suit on certain conditions. Object of the rule is not to allow the
plaintiff opportunity to commence trial afresh after he has failed to conduct
suit with due diligence and care and to substantiate his case by evidence.
However, very purpose of Order XXIII of the CPC is to prevent defeat of
justice on technical grounds. Provisions of order XXIII Rule (1) of CPC
reads as under:
“23. 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 subrule
(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 subrule
(1), or
(b) withdraw was 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.”
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT AURANGABAD
 WRIT PETITION NO. 2908 OF 2013
Ahemadbee Ashrafmiya Shaikh
v
 Yusuf S/o Faijusab Sayyed

 CORAM : K.K. SONAWANE, J.
 DATED : 22nd SEPTEMBER, 2016
Citation: 2017(2) MHLJ 388

1. Rule. Rule made returnable forthwith. Heard learned counsel for the
petitioner and respondent No. 4. Despite service, respondent No. 1
remained absent. It appears that writ petition is dismissed as against
respondents No. 2 and 3 for want of steps. The matter is pending since

2013, therefore, I prefer to determine the issue involved in the petition on
merits.
2. The petitioner - defendant No. 2 assails orders dated 20-10-2012
below Exhibits- 99 and 1, in Regular Civil Suit No. 26 of 2005 passed by
learned Civil Judge, Junior Division, Chakur, District Latur, whereunder
present respondent No. 1 - original plaintiff was allowed to withdraw the
suit with liberty to file a fresh suit on the same cause of action.
3. The petitioner contends that respondent No. 1 – Yusuf Faijusab
Sayyed initiated civil litigation bearing Regular civil Suit No. 26 of 2005 for
the relief of declaration and injunction against petitioner and others in the
court of Civil Judge, Junior Division, Chakur, District Latur. Agricultural
lands bearing Gut Nos. 181 and 205 located at village Dapkyal, tahsil
Chakur were the subject-matter of the suit. After receipt of suit summons,
the petitioner and other defendants appeared in the proceedings and
resisted the claim by filing written statement. Defendants averred in
written statement that portions of land Gut No. 205 admeasuring 1
hectare, 08 Aar and Gut No. 181 admeasuring 00 hectare, 92 Aar were
acquired by the State Government for the purpose of storage tank of
village Dapkyal, tahsil Chakur. Pending proceedings, original plaintiff i.e.
respondent No. 1 -Yusuf Faijusab Sayyed, preferred application Exhibit-99
and requested to allow him to withdraw the suit with liberty to file a fresh
suit on the same cause of action before the Civil Judge, Senior Division,
District Latur. Learned trial court kept application awaiting for reply on
behalf of defendants, but nobody turn up to the court and ultimately
circumstances compelled learned trial court to allow respondent No. 1 -
plaintiff to withdraw the suit with liberty to file a fresh suit on the same

cause of action. The impugned order passed by learned trial court dated
20-10-2012 is put in controversy in the present proceedings on behalf of
the petitioner.
4. The learned counsel for petitioner submits that impugned order
passed by learned trial court is erroneous, illegal and not sustainable
within purview of law. The learned trial court did not pass order after
hearing the petitioner. There were no formal defects in the proceedings.
The reasons mentioned in the petition are false and baseless and not
considerable at all. The original plaintiff - Yusuf Faijusab Sayyed is one of
the party to the proceeding of Land Acquisition Reference No. 90 of 2007.
He has also filed first appeal in the proceedings. Therefore, he cannot
claims ignorance of the acquisition of the contentious suit land. The
petitioner added that after framing requisite issues, plaintiff adduced his
evidence before the learned trial court. The defendants also filed affidavit
by way of evidence. But, there was no cross-examination to the
defendants on behalf of the plaintiff. Eventually, learned trial court passed
order of “No-cross” and forfeited the right of plaintiff to cross-examine the
petitioner in the proceeding. The plaintiff made endeavour to get set-aside
the order of “no-cross” but, learned trial court did not respond to the
request of plaintiff - Yusuf Sayyed and rejected the application. Thereafter,
plaintiff played mischief and preferred present application Exhibit-99 for
withdrawal of the suit with liberty to file a fresh suit on same cause of
action. The permission to withdraw the suit by the plaintiff is at belated
stage, and against the principles of natural justice. Therefore, petitioner
rushed to this court by invoking remedy under Article 227 of the
Constitution of India and filed the present petition to redress her
grievances.

5. I gave anxious consideration to the arguments canvassed on behalf
of petitioner and respondent No. 4. Admittedly, respondent No. 1- original
plaintiff - Yusuf Faijusab Fayyed filed suit against the petitioner and other
defendants for relief of declaration and injunction pertains to the
contentious suit land Gut Nos. 181 and 205 of village Dapkyal, tahsil
Chakur. The petitioner accompanied with other defendants appeared in the
proceedings and filed written statement. It has been pleaded on behalf of
petitioner that portions of land gut Nos. 181 and 205 of village Dapkyal,
tahsil Chakur were acquired by the Government of Maharashtra for the
purpose of storage of tank. After adducing the evidence particularly in the
proceedings, plaintiff preferred application Exhibit-99 seeking permission
to withdraw the proceeding with liberty to file suit on same cause of
action. Accordingly, learned trial court appreciated circumstances and
passed impugned order dated 20-10-2012.
6. The provision of Order XXIII, Rule (1) of the Civil Procedure of
Code, 1908 (for short “CPC”) gave power to the court to allow the plaintiff
at any point of time to withdraw his suit unconditionally or to withdraw
from the suit on certain conditions. Object of the rule is not to allow the
plaintiff opportunity to commence trial afresh after he has failed to conduct
suit with due diligence and care and to substantiate his case by evidence.
However, very purpose of Order XXIII of the CPC is to prevent defeat of
justice on technical grounds. Provisions of order XXIII Rule (1) of CPC
reads as under:
“23. 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 subrule
(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 subrule
(1), or
(b) withdraw was 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.”
7. In the matter in hand, plaintiff filed an application Exhibit-99 for
withdrawal of the suit with liberty to file fresh suit on same cause of
action. The plaintiff claimed ownership of the contentious suit land Gut No.
205 and 181 located at village Dapkyal, tahsil Chakur. It has been
mentioned that owing to ignorance of law plaintiff did not give proper
information about acquisition of the contentious suit property by the
Government of Maharashtra for storage tank of village Dapkyal, tahsil
Chakur. Plaintiff has locus standi to claim legal right of the land acquired
by Government. Therefore, it would necessary for the plaintiff to implead
the State of Maharashtra as necessary party. The proceedings against the
Government of Maharashtra is required to be filed before the Court of Civil
Judge, Senior Division, District Latur. Therefore, plaintiff preferred present
application with liberty to file fresh suit before the concerned Civil Judge,
Senior Division, Latur on the same cause of action.
8. It is to be noted that petitioner or other defendants did not oppose
the contention propounded on behalf of the plaintiff in the application
Exhibit-99 and they all remained absent. Eventually, learned trial court
considering the grounds propounded in the petition, passed impugned
order. It is the rule of law that in case a prayer made for liberty to file
fresh suit, the matter has to be considered on the touchstone of
requirements of order XXIII, Rule 1 of the CPC. If the court is satisfied, it
may permit the plaintiff to withdraw the suit with liberty to file fresh suit.
9. It is not put in controversy that part of the contentious suit land Gut
Nos. 205 and 181 of village Dapkyal, tahsil Chakur were acquired by the

Government of Maharashtra for storage tank of village Dapkyal, tahsil
Chakur. The plaintiff has claimed ownership right and relief of injunction
against defendants pertains to the land Gut Nos. 181 and 205. It is
brought to the notice that there was acquisition of portion of contentious
suit land Gut Nos. 181 and 205 of village Dapkyal, tahsil Chakur by the
Government of Maharashtra for the storage of tank. Therefore, the Court
below allowed application(Exhibit-99) to give reasonable opportunity to the
plaintiff to implead the State of Maharashtra as necessary party in the
proceeding. Undisputably, the suit against the Government Authority is
required to be instituted before the court of Civil Judge, Senior Division
and the learned trial court appreciated the grounds mentioned in the
application being sufficient to allow the plaintiff to institute a fresh suit on
the subject-matter involved in the proceedings. The possibility of failure of
the plaintiff in the proceedings on technical issue of not impleading
Government authority as necessary party in the proceeding could not be
ruled out. Therefore, learned trial court in the interest of justice allowed
the plaintiff for withdrawal of the suit with liberty to file fresh suit on the
same cause action. The approach of learned trial court while dealing with
the application (Exhibit-99) appears just, proper and reasonable. There is
no error committed on the part of the learned trial court while allowing
application for withdrawal of the proceeding with liberty to file a fresh suit
on the same cause of action.
10. The petitioner has raised objection on the ground that plaintiff filed
present application at belated stage after partial evidence into matter. But,
order XXIII, Rule (1) of the CPC contemplates that the plaintiff may at any
point of time after institution of suit withdraw or abandon the suit or any
part of his claim. The petitioner further expressed apprehension of

protracting litigation at the behest of respondent No. 1-original plaintiff. I
do not find any substance in the apprehension propounded on behalf of the
petitioner. Moreover, documents of evidence being part of judicial
proceedings have an evidential value in the eyes of law. The appropriate
legal remedy would be available to the petitioner in case of any mischief of
protracting/prolonging litigation without any reasonable cause. Needless
to state that for the purpose of granting permission for withdrawal of the
suit in view of Order XXIII, Rule (1) of the CPC, the civil courts are
required to apply their mind as to whether having regard to the dispute
between the parties or the case been made our or not. The impugned
order appears to be reasonable and proper to meet ends of justice. There
would not any perversity or jurisdictional error in the impugned order. It
would painful to cause interference in the impugned order by exercising
extra ordinary writ jurisdiction under Article 227 of the Constitution of
India. The petition being devoid of merits and deserves to be dismissed.
11. As such, the petition is hereby dismissed. Rule stands discharged.
No order as to costs.
Sd/-
 [K. K. SONAWANE, J.]

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