1958 (8) TMI 63 - HC - Indian Laws

Summary

Issues:
1. Interpretation of Order XXIII, Rule 1 of the Code of Civil Procedure regarding withdrawal of suits and permission to bring a fresh suit.
2. Whether the court can split the prayer for withdrawal and permission to bring a fresh suit into two parts.
3. Consideration of misjoinder of parties and claims in the suit.

Analysis:
1. The judgment deals with a revision under Section 115 of the Code of Civil Procedure regarding the withdrawal of a suit by the plaintiff against certain defendants. The plaintiff sought possession of properties alienated by his adoptive mother and a house claimed by the third set of defendants. The plaintiff applied for permission to withdraw the suit against the third set of defendants with liberty to file a separate suit due to complications and formal defects in the case.

2. The court analyzed Order XXIII, Rule 1, which allows a plaintiff to withdraw a suit or abandon part of a claim. Sub-rule (2) permits the court to grant permission to withdraw the suit with liberty to bring a fresh suit under certain conditions. The court emphasized that when an application is made under Sub-rule (2), the court cannot treat it as an application under Sub-rule (1) and grant withdrawal while refusing permission to bring a fresh suit. The court cited relevant case laws to support this interpretation.

3. The court found that the lower court erred in splitting the prayer for withdrawal and permission to bring a fresh suit into two parts. It noted that the application was not well-drafted, but considering the complications arising from the joinder of parties and claims, the court allowed the plaintiff to withdraw the suit against the third set of defendants with liberty to file a fresh suit. The plaintiff was directed to pay the costs incurred by the defendants before filing the fresh suit.

4. The judgment highlights the importance of interpreting procedural rules correctly to ensure fair treatment of parties in a legal dispute. It underscores the need for clarity in drafting applications and the potential consequences of misjoinder of parties and claims in a lawsuit. The court's decision to allow the withdrawal of the suit with liberty to file a fresh suit demonstrates a balanced approach to resolving the complexities of the case.