The Plaintiff Has No Absolute Right, At The Appellate Stage, To Withdraw From The Suit: Kerala HC [Read Judgment]

The plaintiff has no absolute right, at the appellate stage, to withdraw from the suit, the Kerala High Court has observed.

Justice R. Narayana Pisharadi observed that the Appellate Court, before granting such liberty to withdraw a suit has to consider whether any right had accrued in favour of the defendant by the dismissal of the suits by the trial court and by granting permission to withdraw from the suits, whether the defendant would be deprived of any such right? The court was considering a petition challenging an order passed by a first appellate court, granting permission to the plaintiff to withdraw the two suits instituted by him with liberty to file fresh suit/suits on the same subject matter.

Order XXIII Rule 1(1) of the Code of Civil Procedure provides that, 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. Rule 1(3) states that, 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. Interpreting these provisions, the court made following observations:

A mere withdrawal of the suit, without asking anything more, can always be permitted.

"The plaintiff can abandon a suit or a part of his claim as a matter of right without the permission of the court. The plaintiff need not obtain any permission from the Court to abandon the suit. He has right to file an application to abandon his suit or part thereof at any time after its filing. In such a case, he will be precluded from suing again on the same cause of action. A defendant cannot compel the plaintiff to proceed with the suit. When the plaintiff files an application under sub-rule (1) of Rule 1 of Order XXIII of the Code and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of costs. The reason is that while making a prayer to withdraw the suit under sub-rule (1) of Rule 1 of Order XXIII of the Code, the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit, without asking anything more, can always be permitted."

No requirement that "sufficient ground" pleaded by the plaintiff for seeking permission to withdraw the suit with liberty to institute fresh suit shall be analogous to a formal defec

The court added that if the plaintiff wants to withdraw from the suit and institute a fresh suit on the same subject matter, he has to seek and obtain permission from the court. The court also considered the question whether "sufficient grounds" mentioned in clause (b) of sub-rule (3) of Rule 1 of Order XXIII of the Code shall be interpreted to mean grounds analogous to a formal defect or not?

"The expression "sufficient grounds" occurring in clause (b) of Rule 1(3) of Order XXIII of the Code is not to be read ejusdem generis with the expression "formal defect" occurring in clause (a). There is no requirement that "sufficient ground" pleaded by the plaintiff for seeking permission to withdraw the suit with liberty to institute fresh suit shall be analogous to a formal defect. There can be no reason as to why the import and amplitude of the expression "sufficient grounds" in clause (b) of Rule 1(3) of Order XXIII of the Code should suffer any unwarranted confinement.

There is restriction on the right to withdraw from the suit at the appellate stage

The court also observed that when an application for withdrawal of suit is filed at the appellate stage, the court has to take into consideration some other matters also.

Therefore, it is now well-settled that there is restriction on the right to withdraw from the suit at the appellate stage. The plaintiff has no absolute right, at the appellate stage, to withdraw from the suit. An application made at the appellate stage to withdraw the suit cannot be allowed by the court if granting such permission would have the effect of depriving or destroying or nullifying or annulling any right which has come to be vested with the defendant under the decree. The court shall keep in mind the fact that, when permission is granted to withdraw from the suit with liberty to file a fresh suit, the parties are placed in the same position as they would have been, had the suit not been instituted at all."

In this case, the court noted, the appellate court has not considered whether any right had accrued in favour of the defendant by the dismissal of the suits by the trial court and by granting permission to withdraw from the suits, whether the defendant would be deprived of any such right. The court referred to Apex Court judgments in Rathinavel Chettiar v. Sivaraman : (1999) 4 SCC 89 and Bhoopathy v. Kokila : AIR 2000 SC 2132.  The court thus remanded the matter to the appellate court for fresh consideration of the applications.

Case name: SABU ISSAC vs. ANTONY CHACKO

Case no.: O.P(C) No.123 of 2020 

Coram: JUSTICE R. NARAYANA PISHARADI

Counsel: Advocates MATHEW JOHN (K), .K.V.SADANANDA PRABHU 

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