Order 23 Rule 2 CPC| Limitation For Suit Instituted Afresh Applies As If Earlier Suit Was Never Filed: Jharkhand High Court
Bhavya Singh
21 Dec 2024 7:25 PM IST
The Jharkhand High Court has under Order 23 Rule 2 of the Civil Procedure Code (CPC), the limitation period for a fresh suit instituted with court permission applies as if the original suit had never been filed.
Order 23 CPC pertains to withdrawal and adjustment of suits wherein Rule 2 states that 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.
Justice Subhash Chand, while delivering the judgment, stated,“So far as the period of limitation is concerned, in Order 23 Rule 2 of C.P.C. itself, it has been provided that in any fresh suit instituted on permission granted under the last preceding rule of Order 23, the plaintiff shall be bound by the law of limitation in the same manner as if the suit had not been instituted which means, once the permission is granted to withdraw the suit with liberty to file the fresh suit, the law of limitation will apply only as if the very suit after granting the permission by the Court has been instituted afresh.”
The above observation was made by the Court while setting aside the trial court's rejection of an application by the plaintiff to withdraw a suit with liberty to file afresh. The plaintiff had moved an application for withdrawal of the suit citing formal defects and sought the liberty to file afresh. However, the trial court, rejected the application, considering that the claim would be time-barred under Article 58 of the Limitation Act.
The High Court observed that the trial court misconstrued the provisions of both Order 23 Rule 2 of the CPC as well as the Article 58 of the Limitation Act.
Justice Chand explained, “Herein it would be pertinent to mention that the Article 58 of Limitation Act in regard to obtaining the declaration is certainly three years but the same would not be applicable in the case in hand. Since, the plaintiff in the Original Suit itself has sought the relief for declaration of right, title and interest in the land in suit which is immovable property and in regard to get the declaration of the same, the Article 65 would be applicable which will start from the date when the possession becomes adverse.”
The Court further said that though Articles 58 and 65 of the Limitation Act were not relevant, yet it was incumbent upon the Trial Court to see whether the application for withdrawal of the suit seeking the liberty was on showing the formal defect or not.
While addressing the contentions made by the counsel for the respondent about litigating the suit for last six years, the High Court imposed a cost of ₹1,000 on the petitioner. The court ordered, “The application for withdrawal is allowed at the cost of Rs. 1,000/- which has to be deposited by the petitioner before the learned Trial Court and permission to withdraw the suit is accorded to the plaintiff with liberty to file the fresh suit.”
While concluding the observations, the High Court set aside the trial court's order, and allowed the Civil Miscellaneous Petition.
Case Title: Ram Janam Ram vs Kripa Nath Chaudhary
LL Citation: 2024 LiveLaw (Jha) 191
