Withdrawal of suit

Where the withdrawal order is passed in the presence of the parties and remained unchallenged despite the availability of adequate statutory remedies the party having acquiesced in the said order and allowing it to attain finality, cannot be permitted to question its legal consequences or to re-characterize an unconditional withdrawal as a conditional one

The law does not countenance such an approach.

Such permission, when granted by Court, serves to safeguard plaintiff from restrictive effects of Order II, Rule 2 and Section 11, C.P.C.

Such right comes with the caveat that once a suit or a part of it is abandoned, the plaintiff cannot initiate a fresh suit based on the same cause of action

Plaintiff cannot withdraw a suit while simultaneously reserving right to file a fresh suit on the same grounds.

There can be three different scenarios regarding compromise between the parties in the life of a civil suit: first, a compromise arrived at in the Court and it covers the subject matter of the suit; second, a compromise entered in the Court but beyond pleadings; and third, a compromise in or out of the Court but beyond the scope of the pleadings

The implication of the first scenario will be that it will have the status of a decree; the remaining two will create a fresh cause of action.

Unless plaintiff satisfies Court that the terms on which he received permission had been satisfied, there is no proper plaint before the Court, with the result that no proceedings on the plaint can be taken

Order of dismissal of suit can be passed only after it is found that plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit.

The petitioners instituted a suit for declaration, cancellation and rectification of mutations asserting that they were the legal heirs of the deceased and that respondents Nos. 2 to 18 had no lawful concern with the disputed inheritance

According to the plaint, portions of the property had wrongly remained or later been entered in predecessor-in-interest of respondents Nos.2 to 18 despite the devolution of inheritance through earlier mutations, and after about seventy years the respondents got the old mutation rectified through revenue authorities, whereupon the respondents moved an application under O. VII R.11, C.P.C.

Trial Court rejected the plaint and the appeal was dismissed

Petitioners then filed the present civil revision

The core issue for determination was “whether, in the facts pleaded, the plaint was legally liable to rejection under O. VII R. 11, C.P.C?”

Held: As the second suit was dismissed for non-prosecution and the petition for permission to file afresh was declined, so the petitioners were precluded from filing the third suit

Moreover, in case of concurrent findings of courts below scope of revision petition became very limited

Petitioners failed to point out any misreading or non-reading of the evidence

Present civil revision had no merit, and was dismissed, in circumstances.

Petitioners / plaintiffs were aggrieved of order passed by High Court declining withdrawal of suit with permission to file fresh suit on the plea of some formal defect

Validity

Petitioners / plaintiffs could not refer to any 'formal defect' which could be: misdescription of partis, incorrect valuation, procedural errors or technical defects, which did not affect merits of the case and if such defects went to the root of the case, the same could not be considered as formal defects

When there was a verdict against petitioners / plaintiffs existing in field, they could not be allowed to step back, without disclosing formal defect in the plaint by using shoulders of Court

Supreme Court declined to interfere in the judgment passed by High Court as there was no illegality, and the law on the subject had correctly and judiciously been appreciated and construed

Petition for leave to appeal was dismissed and leave to appeal was refused.

Rejection of suit for declaration with permanent injunction filed by the daughters/petitioners on the ground of withdrawal of suit earlier filed by the donor challenging the mutation of gift on the ground of fraud and misrepresentation

Mental capacity of donor

Determination

Conversion of proceedings

Scope

Objection as to maintainability of second suit on the ground of withdrawal of earlier suit raised by the donees/respondents was rejected by the trial court, but the same was accepted by the revisional court

Validity

Donor died on same day when his statement was recorded for withdrawal of the suit which raised serious doubt as to his mental and physical condition, to record any statement of his free will and consent

Counsel for the petitioners and the petitioners themselves were present on the date of proceedings, who seriously objected that the donor was not in a position to record his statement as he was mentally and physically feeble, thus, his statement could not be recorded but despite that the proceedings were held which gave rise to the question as to whether the court was not under an obligation to seek medical assistance in the matter before recording the statement of donor to verify his soundness of mental condition, particularly, when it was pointedly disputed by the petitioners

Oral gift was challenged on the grounds of fraud and misrepresentation by the petitioners whose case was that everything was done by the brothers fraudulently to deprive the sisters of right of inheritance and in such cases every effort should be made to avoid technicalities and decide the cases on merits

Court was competent to convert the plaint in a suit into an application under S. 12(2), C.P.C. and vice-versa provided just and fair circumstances in the case permitted to do so for effective dispensation of justice

Order passed by the revisional court was set aside and the case was remanded to the trial court for decision of question of maintainability of the suit in accordance with law

Constitutional petition was allowed, in circumstance.

Subsequent suit filed by petitioner / plaintiff was rejected by Trial Court as well as by Lower Appellate Court as the same was barred by limitation

Validity

If permission was granted for filing a fresh suit under O. XXIII, R.1, C.P.C., then, pursuant to O. XXIII, R. 2, petitioner / plaintiff was bound by law of limitation in the same manner as if the first suit had not been filed

No fresh cause of action would accrue from the date when such permission was granted by the Court

Language used in S. 3 of Limitation Act, 1908 was mandatory in nature and had imposed duty upon Court to dismiss suit instituted after expiry of period provided unless plaintiff seeked exclusion of time by pleading in plaint one of the grounds provided in Ss. 4 to 25 of Limitation Act, 1908

High Court in exercise of revisional jurisdiction declined to interfere in judgments and decrees passed by two Courts below

Revision was dismissed, in circumstances.

If there is request for conditional withdrawal of lawsuit and permission to file a new suit, the withdrawal is contingent upon Court's satisfaction and fulfillment of specific requirements.

Suit was withdrawn on the statement recorded by the counsel of the plaintiffs, however, the plaintiffs later moved application for restoration of the suit which was dismissed by the Trial Court

Appellate Court partly allowed revision moved by the plaintiffs against which order the defendants invoked constitutional jurisdiction of the High Court

Validity

Engagement of counsel and conduct of proceedings by him on the behalf of respondents/plaintiffs under O. III, R. 1 of the Civil Procedure Code, 1908, was admitted one

Respondents had appointed the said advocate as their counsel and had signed the power of attorney on their behalf which authorized conducting of suit including recording of any kind of statement

Record revealed that the statement of the counsel was recorded after having moved application while one of the respondents/plaintiffs was also present

Trial Court recorded the statement and ordered to produce the case next day (which date was already fixed for hearing); and on next date/day order with regard to withdrawal of the suit was passed

By signing Wakalatnama, all the powers including withdrawal of suit or to take any step and conduct proceedings had been delegated upon the counsel

Party is always bound by the statement of his counsel unless there is anything contrary in the power of attorney placing restriction on the authority delegated upon the counsel to compromise or abandon the claim on behalf of client(s)

High Court set aside the order passed by the Appellate Court; and consequently order passed by the Trial Court dismissing the application for restoration of suit filed by the respondents/plaintiffs, stood maintained

Constitutional petition was allowed, in circumstances.

Instances of formed defect are (i) Misjoinder of parties or causes of action which will result in the failure of the suit, (ii) erroneous valuation of the subject matter; (iii) insufficient description of the property involved in the suit; (iv) failure to disclose a cause of action; (v) material document not properly stamped; (vi) non-impleading of necessary party and (vii) form of suit.

Appellate Court allowed revision moved by the plaintiffs against which judgment the defendant invoked constitutional jurisdiction of the High Court contending that the application for withdrawal of suit did not disclose any formal defect

Validity

Expression formal defect must be given a liberal meaning and should be of nature as to entail dismissal of the suit but every kind of defect not going to the root of the case or not affecting the merits of the case

Plaintiff could only be allowed to withdraw his suit or abandon part of his claim if he succeeded to establish that suit must fail by reason of some formal defect

For the purpose of seeking permission of withdrawal of suit in order to file afresh, plaintiff on the one hand was bound to disclose some formal defect and on the other, Court was also obliged to satisfy itself that formal defect was of such a nature that suit must fail

It was thus incumbent upon the plaintiff to point out a formal defect on the pliant justifying withdrawal of his suit with permission to file afresh

Said permission could not be allowed in a mechanical and haphazard manner

Court was also duty bound to examine the contents of the application seeking such permission

From the perusal of the application moved by the respondent it was clearly evident that the sane was bereft of any content disclosing formal defect in the plaint

Civil Court was justified to refuse the application seeking permission to withdraw the suit in order to file afresh whereas the Revisional Court had clearly transgressed its powers and as such impugned judgment was illegal and unlawful

Constitutional petition was allowed, in circumstances.

Petitioner filed revision petition and application seeking withdrawal of suit with permission to file a fresh suit on the basis of a certain letter/document which had already been on record (in relevant departments) but the petitioner had neither agitated before the trial or appellate courts and filed the application after five years of filing revision petition

Such could not be treated as 'formal defect'

Evidence produced by petitioners/plaintiffs was inconsistent/contradictory to each other

Parties were bound to show good cause for non-production of such document at relevant stage

Party remained silent for years of litigation and after dismissal of their suit and appeal and application

No evidence was produced to show as to whether suit land was cultivable by Karez, or when permission was obtained for Karez

Concurrent judgments were upheld and Revision was dismissed.

Litigant is only allowed to withdraw a lis and to file it again under O. XXIII, R. 1, C.P.C., if defects in petition are not curable

For fresh cause of action no permission is required.

Plaintiff company was aggrieved of withdrawal of suit on basis of compromise which was result of misrepresentation and fraud

Single Judge of High Court in exercise of powers under S. 12(2), C.P.C. set aside compromise

Validity

To obtain withdrawal of suit it was presented to court by representatives of parties as they had entered into compromise out of court

To dispute alleged compromise, plaintiff had filed application with affidavits of three persons who were among five attorneys appointed by plaintiff company for purposes of suit

All three persons were associated with a law firm who stated that plaintiff company had always given its instructions directly to the advocate and not to any of attorneys

Managing Director of plaintiff company also filed affidavit stating that there was no compromise with defendant Shipping Company and no instructions had ever been given to representative to withdraw suit nor representative had any authority to do so

High Court declined to interfere in order passed by the Single Judge of High Court as there was no out of court compromise and a case of misrepresentation was established

High Court appeal was dismissed in circumstances.

Once a suit was withdrawn without permission to file fresh suit on the same cause of action, plaintiff could not maintain a suit/petition before the same Court.

When earlier suit was withdrawn after institution of subsequent suit then provisions of O. XXIII, C.P.C. were not attracted and fresh suit could not be declared to be barred by law

Findings recorded by the Trial Court did not suffer from any mis-reading or non-reading of record

Appeal was dismissed in circumstances.