2004 (3) TMI 832 - HC - Indian Laws

Plaintiff Granted Right to Withdraw Suit and Refile Under Order XXXIII Rule 1, Subject to Limitations.

The HC set aside the impugned Order, allowing the plaintiff to withdraw the Suit under Order XXXIII Rule 1 of the CPC, with permission to file a fresh ... - Issues Involved:1. Permission to withdraw the Suit under Order XXXIII Rule 1 and Section 115 of the Code of Civil Procedure.2. Rejection of the application for withdrawal based on the alleged formal defect in the Suit.3. Interpretation of provisions under the Code of Civil Procedure regarding rejection of Plaint and filing fresh Suits.4. Consideration of compensating the Defendant by way of costs.5. Analysis of the unqualified right of a plaintiff to withdraw from a suit under Order XXXIII Rule 1.Issue 1: Permission to withdraw the Suit under Order XXXIII Rule 1 and Section 115 of the Code of Civil Procedure:The Revision was directed against the Order declining permission to the plaintiff to withdraw the Suit. The plaintiff sought to withdraw the Suit under Order XXXIII Rule 1 and Section 115 of the Code of Civil Procedure due to a preliminary objection raised by the Defendant regarding the maintainability of the Suit under Section 34 of the Specific Relief Act.Issue 2: Rejection of the application for withdrawal based on the alleged formal defect in the Suit:The Trial Court declined the permission to withdraw the Suit, stating that the alleged formal defect could be cured by amending the Plaint. The Court opined that a formal defect is one that could be rectified through amendment and directed the plaintiff to carry out amendments to the Plaint instead of allowing the withdrawal of the Suit.Issue 3: Interpretation of provisions under the Code of Civil Procedure regarding rejection of Plaint and filing fresh Suits:The High Court analyzed the provisions of the Code of Civil Procedure, highlighting that the rejection of a Plaint under Order VII Rule 11 does not preclude the plaintiff from presenting a fresh Plaint in respect of the same cause of action. It was emphasized that a fresh Suit can be filed even if the initial Suit is dismissed, subject to the law of limitation.Issue 4: Consideration of compensating the Defendant by way of costs:The Court considered whether the Defendant should be compensated by way of costs due to the rejection of the application for withdrawal. It was noted that the Court cannot dictate the manner in which a Suit should be prosecuted and that the plaintiff should have the discretion to withdraw the Suit without being compelled to carry on litigation.Issue 5: Analysis of the unqualified right of a plaintiff to withdraw from a suit under Order XXXIII Rule 1:Referring to previous judgments, the High Court emphasized that a plaintiff has an unqualified right to withdraw from a suit under Order XXXIII Rule 1. The Court noted that there is no provision in the Code of Civil Procedure compelling the Court to refuse permission to withdraw the Suit and compel the plaintiff to proceed with it.In conclusion, the High Court set aside the impugned Order and permitted the withdrawal of the Suit with leave to institute a fresh Suit on the same subject matter, subject to legal constraints such as the principles of limitation. The Revision Petition was disposed of accordingly.