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AI Drafter - (New and Powerful) ✕ Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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Issues: Whether an application under Order 23 Rule 1(3) of the Code of Civil Procedure, 1908 seeking withdrawal of a suit with liberty to file a fresh suit can be partly allowed by permitting withdrawal while refusing liberty.
Analysis: An application for withdrawal of a suit with liberty to institute a fresh suit is an indivisible whole. The Court must either allow the entire request or reject it in toto. If liberty to file a fresh suit is refused, the pending suit cannot be dismissed on the footing that withdrawal alone is permitted, because the prayer cannot be split into two separate parts. In that event, the application ought to be rejected in entirety and the suit retained on file. The refusal of liberty in the present case was justified, but the suit itself ought not to have been dismissed.
Conclusion: The Trial Court erred in allowing withdrawal while refusing liberty to sue afresh. The application should have been dismissed in toto, and the suit should have continued.
Final Conclusion: The order partly allowing the application was set aside, the revision was allowed, and the interlocutory application was dismissed in full.
Ratio Decidendi: An application under Order 23 Rule 1(3) of the Code of Civil Procedure, 1908 is indivisible, and the Court cannot permit withdrawal of a suit while refusing leave to institute a fresh suit on the same cause of action.
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