O. XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS

THIS FILE DEALS WITH THE WITHDRAWAL AND ADJUSTMENT OF SUITS UNDER O. XXIII OF CPC,1908.

1. WITHDRAWAL AND ADJUSTMENT OF SUITS O. XXIII BY- ALISHA VERMA ASSISTANT PROFESSOR LAW MANIPAL UNIVERSITY JAIPUR

2. WITHDRAWAL OF SUITS OR ABANDONMENT OF PART OF THE CLAIM [RULE 1] [ S ummary ] This rule does not create a new right, it merely affirms the right of a plaintiff to withdraw a suit in whole or in part against all or any of the defendants and is added here to make the rule a complete enunciation of the law relating to the withdrawal of and from the suit . SUB RULE (1) talks about WITHDRAWAL OF SUIT by plaintiff on his own motion SUB RULE (2) talks about the procedure to withdraw, where the suit is by the MINOR SUB RULE (3) talks about WITHDRAWAL FROM SUIT with permission of court

3. If the party desires to withdraw from the suit with liberty to institute a fresh suit, he must apply to the court under SUB RULE (3) to permit him so to withdraw. [withdraw from suit] If he does not desire to have that liberty , then he can withdraw the suit on his own motion under SUB RULE (1) and no order of court is necessary . [withdraw of suit]

4. EFFECT OF WITHDRAWAL WITHOUT PERMISSION OF THE COURT ? S UB RULE (4) talks about the consequence of withdrawal without permission of the court – The party SHALL BE LIABLE FOR COST 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

5. BISHWAROOP BANERJEE v. MADHUKAR NAULAKHA (2006 SC) It was held that even if the permission to file a fresh suit was not obtained the court has the power under S ec. 151 of CPC,1908 ( Inherent powers) to allow the fresh suit in exceptional circumstances.

6. When there are more than one plaintiffs? SUB RULE (5) This provision talks about the situation when there are more than one plaintiffs- It says that the suit or part of the claim cannot be abandoned or withdrawn without the consent of all the plaintiffs. One of such plaintiffs, however, may abandon or withdraw from the suit to the extent of his own interest in it.

7. LETS SEE THE LANGUAGE OF [RULE 1]

8. Withdrawal by plaintiff without p ermission of the court - SUB RULE (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.

9. Procedure in case of Minor / unsound mind plaintiff- SUB RULE (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 persons.

10. Withdrawal by permission of the court- SUB RULE (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

11. FORMAL DEFECT For example... Misjoinder of parties or Cause of action An erroneous valuation Want of statutory notice under section 80 Failure to disclose the cause of action Non- payment of court fee or stamp fee Lack of jurisdiction

12. SUFFICIENT GROUNDS For example… Suit was premature Omission to file power of attorney

13. You may see the reasons here, which are also the grounds of rejection of plaint or return of plaint under CPC,1908. while explaining this Sir Mulla said that because some of the provisions of CPC are not applicable to CHARTERED HIGH COURTS ( O.XLIX, Rule 3) , hence this concept of Withdrawal.

14. When plaintiff withdraws without permission from the court SUB RULE (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 preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.

15. In case of several plaintiffs SUB RULE (5) Nothing in this rule shall be deemed to authorize 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.]

16. Whether appeal lies against such order? An order granting or refusing permission to withdraw the suit with permission to file fresh suit on the same cause of action is neither a DECREE nor an APPEALABLE ORDER. Hence, no appeal lies against such order.

17. Then what remedy does the aggrieved party have? An order granting or refusing permission to withdraw the suit with permission to file fresh suit on the same cause of action can be said to be a “case decided” under section 115 of CPC. Such order is therefore, REVISABLE.

18. When transposition of defendants as plaintiffs may be permitted [ RULE 1A] Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants .

19. Limitation law not affected by first suit [Rule 2] In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. Note: Sec. 14(3) must be read with this rule.

20. Sec.14(3) of Limitation Act,1963 Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) [ which talks about the exclusion of time in instituting the suit in case the plaintiff was contesting other civil proceedings in good faith] shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

21. Compromise of suit [ Rule 3] Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties OR where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit , the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:]

22. Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question ; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation—An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;]

23. Bar to suit [Rule 3A] No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

24. No agreement or compromise to be entered in a representative suit without leave of Court [ Rule 3B] ( 1) no agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void. (2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

25. Explanation.- In this rule, "representative suit" means,- (a) a suit under section 91 or section 92, (b) a suit under rule 8 of Order I, (c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family, (d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.]

26. Proceeding in execution of decrees not affected [Rule 4] Nothing in this Order shall apply to any proceedings in execution of a decree or order.