Ker HC | Equity cannot allow a remedy affecting balance of interest between the parties; Order allowing application for withdrawal of suit at appellate stage set aside

Kerala High Court

Kerala High Court: R. Narayana Pisharadi, J., setting aside the order against impugned applications, held, “The plaintiff has no absolute right, at the appellate stage, to withdraw from the suit.”

Brief Facts

In the present case, the Court was to determine the interest of the defendant in a case where the plaintiff sought to withdraw the suit at an appellate stage. The plaintiff filed two applications under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908 (for short ‘the Code’) praying that he may be permitted to withdraw from the two suits with liberty to sue the defendant/defendants afresh on the same subject matter. These applications were filed by the plaintiff on the plea that his counsel opined that there was so many defects in the framing of the suits and that the proper remedy ought to have been to file a suit for declaration of title of the disputed property and recovery of possession.  The defendant filed objection to the abovementioned two applications, contending that no sufficient ground exists so to grant permission to the plaintiff to withdraw from the said suits. Order allowing the two applications were made by the first appellate Court, which is under challenge in the present petition.


The Court restated the language of Order XXIII Rule 1 of the Code and cited settled precedents on the present subject matter.

  • Order XXIII Rule 1(1) of the Code provides that, at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
  • Order XXIII Rule 1(3) of the Code states that, where the Court is satisfied, (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
  • With respect to the withdrawal of the suit, the Court cited Anil Kumar Singh v. Vijay Pal Singh, (2018) 12 SCC, “The plaintiff can abandon a suit or a part of his claim as a matter of right without the permission of the court. The plaintiff need not obtain any permission from the Court to abandon the suit. He has right to file an application to abandon his suit or part thereof at any time after its filing. In such a case, he will be precluded from suing again on the same cause of action. A defendant cannot compel the plaintiff to proceed with the suit. When the plaintiff files an application under sub-rule (1) of Rule 1 of Order XXIII of the Code 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 costs. The reason is that while making a prayer to withdraw the suit under sub-rule (1) of Rule 1 of Order XXIII of the Code, the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit, without asking anything more, can always be permitted. But, if the plaintiff wants to withdraw from the suit and institute a fresh suit on the same subject matter, he has to seek and obtain permission from the court.”
  • Rathinavel Chettiar v. Sivaram, (1999) 4 SCC 89, “The plaintiff cannot, while abandoning a suit or abandoning a part of his claim, reserve to himself the right to bring a fresh suit on the same cause of action.”
  • With respect to the principle underlying withdrawal of suit, the Court cited, Sarguja Transport Service v. State Transport Appellate Tribunal,(1987) 1 SCC 5, “In order to prevent a litigant from abusing the process of the court by instituting suit again and again on the same cause of action without any good reason, the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII of the Code. The principle underlying the above rule is founded on public policy.”
  • The Court further cited, Sneh Gupta v. Devi Swarup, (2009) 6 SCC 194, “A permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit. The Court for the purpose of allowing withdrawal of a suit after passing the decree, viz., at the appellate stage, is required to consider this aspect of the matter.”
  • Enumerating the grounds wherein such application for withdrawal may be allowed, the Court observed, “The plaintiff can seek permission to withdraw from the suit with liberty to file afresh suit in respect of the same subject matter of the suit, on any of the two grounds: (1) The suit would fail by reason of some formal defect. (2) There are sufficient grounds for allowing the plaintiff to institute a fresh suit in respect of the subject matter of the suit. The Court can allow the application filed under Order XXIII Rule 1(3) of the Code for withdrawal of the suit with liberty to bring a fresh suit only on satisfaction of the condition in either of the Clauses (a) or (b), that is, existence of a formal defect or sufficient grounds.”


While allowing both the original petitions, the impugned orders are set aside. Court remanded the matter to the appellate Court for fresh consideration, to evaluate if any right in the favour of defendant seems to have accrued and if any grounds under clause (a) or (b) of Order XXIII Rule 1(3) existed for permitting such withdrawal.  [Sabu Isaac v. Antony Chacko, 2020 SCC OnLine Ker 4230, decided on 05-10-2020]

Sakshi Shukla, Editorial Assistant has put this story together

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