When a suit is instituted, does this though ever cross our minds that in case, if such suit is required to be withdrawn, how will the procedure go? Or is it even possible to do so? Order XXIII of the Code of Civil Procedure comes to the rescue in such a contingency. Basically it says that the suit may be withdrawn under two circumstances. Both deal with the leave of the court. These are absolute suit withdrawal and qualified suit withdrawal.
When a suit is to be withdrawn, it is the discretion of the court to grant a leave or not. It can be asked for by the application of the plaintiff else the court may even grant it suo moto. Basically the classification as to the withdrawal with respect to absolute and qualified withdrawal is done solely on the basis to determine whether the leave is granted by court or not. Leave therefore carries a lot of significance. It disables the bar of res judicata. Henceforth, if the plaintiff withdraws the suit by obtaining a leave of the court, his position would be restored as if no suit was ever instituted by him at all.
Dealing with the absolute withdrawal, which means the withdrawal without the leave of the court, it is stated that any time after the institution of a suit, the plaintiff may abandon his suit or abandon a part of his claim against all or any of the defendants without the leave of the court.[1] Basically this means that the plaintiff require no permission whatsoever that means this power is absolute and unqualified. The court simply cannot refuse the plaintiff to withdraw or compel him to proceeding with the suit or contribute it. But in case where the plaintiff is minor, neither the suit nor any part of the claim can be abandoned without the leave of the court.[2]
But there is a proviso attached to it that unless any vested right comes into existence before such prayer is made.[3] Also it is to be understood that when such plaintiff withdraws the suit without the leave of the court, he will be precluded to institute a fresh suit in respect of the same cause of action. At the same time, the defendant may be awarded with all the costs by the Court payable by the plaintiff.[4] In case where there are two or more plaintiffs, the suit or any part of the claim cannot be withdrawn without the consent of all plaintiffs unless any one of them abandons only his interest in the claim.
While the procedure with regard to withdrawal of suits with notice of the court, Rule 1(3) of Order XXIII deals with it. There must be certain grounds which shall be satisfied by the court such as a formal defect which may fail the suit. There must also be existence of those sufficient grounds for allowing a plaintiff to institute a fresh suit with other terms and conditions as the court may think fit. The term formal defect means some defect of form or procedure though not affecting the merits of the case. These can be ranging from anything between misjoinder of parties or cause of action, a mistake in not seeking proper relief, improper evaluation of the subject matter of the suit, defect in prayer or absence of jurisdiction, etc.[5]
On the other hand, the term formal defect will not be analogous to the defects which affect the merits of the case such as omission in joinder of necessary parties or adding all cause of actions to the suit. Other examples include non registration of partnership firm, addition of a new factual plea, non examination of material witnesses, bar of limitation, etc. The term sufficient ground must be interpreted differently from the meaning of the term formal defect. It is to be understood that the term sufficient ground has wide connotation and can be construed accordingly for any circumstances which may fit the interests of the justice.
The provision as to withdrawal of suit also has effect on other proceedings such as appeals, revisions, writ petitions, execution proceedings and representative suits. The applicant has a right to withdraw his appeal unconditionally if he makes such an application, the court must grant it, subject to costs, and has no power to say that it will not permit the withdrawal and will go on with the hearing of the appeal.[6] While for revision the provisions of withdrawal were applied in certain instances and sometimes where not made applicable thereto.
For a representative suit, it is well settled that a person having representative character having no interest in the claim cannot withdraw it. Writ petitions under Article 226 and Article 32 of the Constitution can be withdrawn, having same effects of withdrawal of suit with application of res judicata if there exists no objection by Registry or technical defect or logistic problem or availability of alternative remedy or any formal objection. For an executive proceeding, the provision of withdrawal of suit does not apply.
It can be summarised that withdrawal of suit can be made by the plaintiff or court itself regardless of the notice or leave obtained by court or not, the plaintiff is under obligation to restore all benefits which he may have obtained by virtue of any interim order. The leave of the court also bears peculiarity in case of determining the bar of res judicata on institution of a fresh suit with same cause of action. Similarly, since such withdrawal of suit is neither a decree nor an order, therefore no appeal lies against it but since the discretion of the court is made in form of an order for granting or refusing the application of withdrawal, so it would be revisable like any other order.
References:
[1] Order XXIII Rule 1(1)
[2] Proviso to Order 1(1), Amendment Act, 1976
[3] R. Ramamurthy v. V. Rajeswara AIR 1973 SC 643
[4] Kinkan Trading Company v. Suresh Govind AIR 1986 SC 1009
[5] S. H. Kelkar v. Mandakini Bai AIR 1970 Mys 163
[6] Bijayananda Patnaik v. Satrughna Sabu AIR 1963 SC 1566
