Should An Application For Withdrawal Of Suit Be Followed By A Court Order? Supreme Court To Consider

The Supreme Court issued notice in a Special Leave Petition raising the issue whether an application for withdrawal of suit should be followed by an order of the court?

In this case, the Jharkhand High Court had set aside an order of the Trial Court which allowed an application to withdraw a partition suit, on the ground that the order of such withdrawal was passed on an application filed by plaintiff, after his death. 

Before the Apex Court bench of Justices Hemant Gupta and Vikram Nath, it was contended that the order of the court is necessitated only in case where the plaintiff is a minor or other person to whom provisions contained in Rule 1 to 14 of Order XXXII of the Code of Civil Procedure extends.

The petitioners also relied on a Judgment of the Bombay High Court in Anil Dinmani Shankar Joshi Vs. Chief Officer, Panvel Municipal Council, Panvel AIR 2003 Bombay 238. In Anil Dinmani Shankar Joshi, the High Court had observed that every plaintiff has an unconditional right to withdraw his suit unconditionally. "The withdrawal would be complete as soon as the plaintiff files a purshis of withdrawal. The Court may pass a formal order recording the withdrawal and also make an order regarding costs, but the withdrawal is not dependent on the order of the Court. This could apply also where the plaintiff seeks withdrawal of the suit against one or more of the defendants and the withdrawal would be complete against those defendants as soon as the plaintiff files an application/purshis for withdrawal. The Court may then consider whether the suit survives against the other defendants against whom suit is not withdrawn. If it comes to the conclusion that the defendant or defendants against whom the suit is withdrawn was or were necessary parties, the Court would then be entitled to dismiss the suit against all on the ground of non-joinder of the necessary parties. But the Court cannot refuse to allow the withdrawal on the ground that the person against whom the suit is sought to be withdrawn is a necessary party.", it was observed.

The said judgment refers to observations made by the Supreme Court in Shiv Prasad v. Durga Prasad (1975) 1 SCC 405 : "Every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may make a formal order disposing of the application as withdraw but the withdrawal is not dependent on the order of the Court. The act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application."

Case:  Gayatri Devi vs Ambika Tiwari | SLP(C) 11333/2022

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