withdrawal of suit with liberty to file a fresh suit is the plaintiff’s right, but when the plaintiff wishes to the withdrawal of suit with liberty to file a fresh suit generally the court should not routinely permit a plaintiff to do so.
When the plaintiff wants to request permission from the Court to withdraw the suit with permission to file a fresh suit, he must prove that there is a formal defect, then he has ample grounds to allow him to institute a fresh suit on the same issue.
But if the plaintiff does not show how is required. O.23, R.1(3) of CPC; The Court may dismiss the application to withdraw the suit with the freedom to file a fresh suit on the same cause of action.
Grant of leave in accordance to sub-rule (3) of the Order. 23. Rule,1 is at the discretion of the Court, but the power of discretion should be exercised by the Court with caution and care.
It is clear from the provisions of sub-rule (3) in which two alternatives are provided (1) where the Court is satisfied that action must not be taken on the grounds of a formal defect. Other, the Court is satisfied that there are sufficient grounds for allowing the applicant to institute a fresh suit on the subject-matter of the lawsuit or part of the claim.
Clause (b) of sub-rule (3) provides that the Court must be satisfied with the sufficient grounds for allowing the plaintiff to begin a fresh suit for the same suit or for any part of the suit for the same cause of action.
Thus, in accordance with these provisions, if the plaintiff’s suit had a formal defect or if the court is satisfied that the suit must fail on the grounds of a formal defect, the court may allow the plaintiff to withdraw the suit with the liberty of filing a fresh suit.
When should the withdrawal of suit with liberty to file a fresh suit not allow?
1. Non-joinder of co-owners as parties in the suit is not a formal defect.
“When co-owner not to added as parties in the suit, this defect is not formal. The Court should not grant permission to withdraw the suit with the liberty to file a fresh suit on the same cause of action.”
In the case of M/s. Pranjivandas Virjibhai and Ors v. Pravinkumar Mohanlal Modi (AIR 2011 Gujarat 89), The Gujarat High Court observed that, according to Order 23, Rule 1(3), whether the Court is satisfied (a) that a lawsuit must fail due to some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh civil suit for the reason of a lawsuit or part of a claim. Because the non-joinder of co-owners as parties in the litigation is not a formal defect, the Court should not grant permission to withdraw the suit with the liberty to file a fresh suit lay with the same cause. It has come to the record that the present petitioners in their written statement raised the particular objection. No action taken by the respondent, in spite of that fact. The suit continued, and evidence was brought; arguments were also over, and when the judgment was to be declared, the defendant moved a present application, which is extremely delayed, and the Court should not have entertained such an application at the late stage.
(2) Earlier suit was not withdrawn but dismissed for default held. It was impossible to treat it as withdrawal.
“The earlier suit was not withdrawn but dismissed for default held it was impossible to treat it as withdrawal under O.23 R.1(3).”
The case of Mrs. L.A. Saunders Vs. Land Corporation of Bengal Ltd (AIR 1955 Calcutta 169), The Calcutta High Court observed that it is very clear that O.23 R.1(3) of the Code has no way of referring to the above-mentioned facts. The earlier suit was not withdrawn, but was dismissed-maybe, and dismissed-for default or non-prosecution. It has been a dismissal under O.9 R.8 of the Code, and can not be treated as a withdrawal under O.23 R.1 (3). Rejecting the appellant ‘s argument is sufficient in so far as it is based on O.23 R.1(3) of the Code.
(3) Avoid a multiplicity of proceedings in respect of the same cause of action.
“When the court granting permission to withdraw the suit with liberty to file a fresh lawsuit on the same cause of action leads to a multiplicity of proceedings and the Courts are not in a position to afford to try such multiple processes in respect of the same cause of action unless exceptional circumstances warrant, held rejection of the application is justified.”
In the case of Siddagangappa vs. Thimmanna (AIR 2003 Karnataka 164), The Karnataka High Court observed that the courts were filled with lakhs of lawsuits, and each case was taking considerable time to finish. Litigants are patiently waiting to get their cases disposed of. This being the condition of the courts, allowing a party to pursue the lawsuit brought by him before it reaches its fag end and after that granting of permission to withdraw the suit with the liberty to file a fresh suit on the same ground of action leads to a multiplicity of proceedings and the courts are not in a position to prosecute such different transactions on the same field unleading Rejection of the application is required.
(4) If the plaintiff has not able to prove his case on merit, there is no ground to allowing him to withdraw the suit.
“If the plaintiff is unable to prove his case on merit, there is not sufficient ground to withdraw a suit.”
In the case of K. Chinna Vaira Thevar vs. S. Vaira Thevar (AIR 1983 Madras 160), The Madras High Court observed that failure on the part of the complainant to obtain the required evidence to support his case would not be grounded as contemplated in that rule. The word ‘reasonable grounds’ found in the above rule can not be used to dismiss a suit on the ground that the plaintiff has not proven his case. Therefore, in all cases where a suit or appeal has been dismissed on the merits, the plaintiff or defendant the, as the case may be, make an application under that rule for the dismissal of the suit, with the liberty to file a fresh lawsuit on the same cause of action later. Unless such a thing is permitted, any lawsuit would have no end. Consequently, the legislature would not have envisaged ‘dismissal of a suit on merits’ as a sufficient ground for allowing the complainant to withdraw the suit with the freedom to file a fresh suit. The plaintiff’s inability to prove his case is no excuse to allow him to withdraw the lawsuit under R.1(3)(a) of O.23. The purpose of the Rule is not to allow the plaintiff to file a fresh suit after he has failed to establish his case by adducing required evidence to have another opportunity to agitate the matter to prejudice the other side.
The case before us is a fortiori case, as the court of law considered all the facts in the case and the court found that there was insufficient evidence to support the argument of the plaintiff because the evidence provided by the plaintiff was insufficient to prove the case put forward by the plaintiff, we do not see how he might be able to withdraw the suit at the appeal stage after the trial.
(5) The plaintiff did not satisfy the court to requirements of o.23 r.1(3), then an order to permit him to withdraw from the suit is not maintainable.
In the case of A.V.S. Perumal vs. Vadivelu Asari (AIR 1986 Madras 341), The Madras High Court observed that the application for withdrawal of the suit concerned, the plaintiff was unable to demonstrate how the requirements of O.23, R.1(3) of the Code of Civil Procedure were fulfilled to allow him to withdraw the suit with liberty to file a fresh suit on the same cause of action. Hence, the lower court’s order allowing the suit to be withdrawn is unsustainable.
(6) If Abatement of suit partially or wholly Permission should be refused.
“If Abatement of suit partially or wholly Permission should be refused to withdraw suit with liberty to file a fresh suit on the same cause of action.”
In the case of Shyam Ray vs. Haramani Dei (deceased by LR.) and others (AIR 1984 Orissa 67), The Orissa High Court observed that the liberty to institute a fresh suit on the same cause of action should be refused if the suit can not proceed due to abatement. The deformity suffered as a result of the abatement does not come under either “formal defect” in clause (a) or “sufficient grounds” in clause ( b) of subsection ( 3) of Rule 1 of Order 23. Similarly, if the suit can proceed with the surviving defendants, there is no need to grant the liberty to institute a fresh suit on the same cause of action. The plaintiff will bring the very suit in such a case as well. The legislation’s strategy is to prevent multiplicity of proceedings.
(7) Plaintiff failed to specify the so-called formal defect.
“The plaintiff failed to specify so-called formal defect and Court was thereby unable to record its satisfaction that suit would fall because of the formal defect, the court can decline to grant the permission.”
In the case of Somalraju vs. Samanthu Sivaji Ganesh and Anr,(AIR 2009 Andhra Pradesh 12), the High Court of Andhra Pradesh observed that the word ‘formal defect’ in the ordinary language connotes defects of different kinds that do not affect the merits of the case. Therefore, a formal defect is ‘a defect’ unrelated to the merits claim of the plaintiff.
In these circumstances, the mere repetition of the expression ‘formal defect’ is not sufficient to grant permission as provided for in sub-rule 23(1)(3). According to the plaintiff, what is the formal defect must be specified and if the Court is satisfied that the suit must fail due to such a legal defect, the leave may be granted, pointing out such formal defect.
Because the appellant, unfortunately, did not define the so-called formal defect in the instant case , the Court below was unable to record its satisfaction that the suit would fail due to the formal defect. The Court below was therefore justified in dismissing the petitioner ‘s request under CPC order 23 Rule 1(3).
So if the plaintiff wishes the withdrawal of the suit with liberty to file a fresh suit with the same cause of action, with a satisfactory reason, he must show the Court the formal defects of the suit. Nonetheless, if the plaintiff fails to explain the formal defect of the suit, and the Court is not satisfied, then the Court has the discretion to reject the said application with the above-mentioned reason.