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2017 (11) TMI 1863 - SC - Indian LawsPermission for withdrawal of suit - Whether the two Courts below were justified in allowing the application filed by the appellant (plaintiff) under Order XXIII Rule 1 of the Code and thereby justified in permitting the appellant (plaintiff) to withdraw the suit? HELD THAT - Reading of Order XXIII Rule 1 would go to show that the plaintiff has a right to file an application to abandon his suit or part thereof at any time after its filing. However, if the permission to withdraw the suit, whether full or part thereof is granted under Rule 1(3), then the plaintiff would be granted liberty to institute a fresh suit on terms as the Court may deem fit and proper to impose on the plaintiff in respect of the same subject matter of the suit or part thereof - If the permission to withdraw the suit is granted under sub-rule(1) of Rule 1 read with sub-rule (4)(a) or (b) then in such event, the plaintiff would only be liable to pay cost to the defendant. However, in such situation, he is precluded from filing a fresh suit in respect of the same subject matter or part thereof. Coming to the facts of the case on hand, we find that the appellant (plaintiff) had applied for withdrawal of his suit under Order XXIII Rule 1. The Trial Court acceded to the prayer and accordingly granted permission to the appellant to withdraw the suit on payment of cost of ₹ 350/- to the defendants. This the Trial Court did by taking recourse to the powers conferred under Order XXIII sub-rule (4)(a) of Rule 1. When the plaintiff files an application under Order XXIII Rule 1 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 the cost to him by the plaintiff as provided in sub-rule (4). The Trial Court and the Revision Court were justified in permitting the appellant (plaintiff) to withdraw the suit whereas the High Court was not right in setting aside the orders of the Revision Court and the Trial Court and giving directions to place defendant No.1 in possession of the suit land - Appeal allowed.
Issues Involved:
1. Whether the Trial Court and the Revision Court were justified in allowing the plaintiff to withdraw the suit under Order XXIII Rule 1 of the Code of Civil Procedure, 1908. 2. Whether the High Court was correct in setting aside the orders of the Trial Court and the Revision Court and directing the plaintiff to place the defendant in possession of the suit land. Issue-wise Detailed Analysis: 1. Justification of Withdrawal of Suit by the Trial Court and the Revision Court: The appellant (plaintiff) filed a suit seeking permanent injunction against respondent No.1 from interfering with the possession of the suit land. Subsequently, the appellant applied for withdrawal of the suit under Order XXIII Rule 1 of the Code of Civil Procedure, 1908. The Trial Court granted permission to withdraw the suit on payment of cost of ?350/- to the defendant, invoking sub-rule (4)(a) of Rule 1. The Revision Court upheld this decision. Order XXIII Rule 1 allows a plaintiff to abandon the suit or part of it at any time after its institution. If permission to withdraw is granted under Rule 1(3), the plaintiff can institute a fresh suit on the same subject matter. However, if withdrawal is under sub-rule (1) read with sub-rule (4)(a) or (b), the plaintiff is precluded from filing a fresh suit on the same subject matter and is only liable for costs. The Supreme Court affirmed that the plaintiff has the right to withdraw the suit without seeking permission to file a fresh suit, and the defendant cannot compel the plaintiff to continue the suit, except to claim costs. The Trial Court and the Revision Court were justified in permitting the withdrawal of the suit under Order XXIII Rule 1. 2. High Court's Decision to Set Aside Lower Courts' Orders: The High Court, in its writ petition judgment, set aside the orders of the Trial Court and the Revision Court and directed the plaintiff to place the defendant in possession of the suit land. The Supreme Court found this to be a jurisdictional error. The High Court's scope in the writ petition was limited to examining whether the Trial Court and the Revision Court correctly applied Order XXIII Rule 1 in allowing the withdrawal of the suit. The Supreme Court held that the High Court erred by delving into issues related to the grant of injunction, which was not the subject matter of the writ petition. The grant of injunction is governed by Order XXXIX Rules 1 and 2, which operates in a different sphere than Order XXIII Rule 1. The defendant did not challenge the ex-parte injunction order in the appropriate forums, and thus, the High Court should not have addressed it in the writ petition proceedings. The Supreme Court concluded that the High Court should have confined its inquiry to the compliance with Order XXIII Rule 1 and not extended its judgment to issues beyond the withdrawal of the suit. Conclusion: The Supreme Court allowed the appeal, set aside the High Court's order, and restored the orders of the Trial Court and the Revision Court. The defendant is at liberty to raise issues relating to ownership and possession of the suit land in appropriate proceedings in accordance with the law.
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