Source: Jharkhand High Court 

Why in News? 

A bench of Justice Subhash Chand held that limitation period for a fresh suit instituted after withdrawal with the permission of the Court applies as if original suit had never been filed.                  

• The Jharkhand High Court held this in the case of Ram Janam Ram v. Kripa Nath Chaudhary (2024). 

What was the Background of Ram Janam Ram v. Kripa Nath Chaudhary Case?  

• The petitioner, Ram Janam Ram, filed Original Suit seeking a declaration of his right, title, and interest over certain immovable property. 
• The plaintiff claimed to be the legal heir and raiyat (tenant) of the disputed land based on ancestral succession. 
• It was the case of the plaintiff that the property was recorded in the name of plaintiff’s great grandfather in survey records. 
• The respondent, Kripa Nath Chaudhary, opposed the suit by filing a written statement. 
• The plaintiff filed an application under Order 23 Rule 1 of the Civil Procedure Code, 1908 (CPC) to withdraw the suit with liberty to file a fresh one, citing formal defects in the original suit. 
• The application was opposed by the defendant on the grounds of delay. 
• The Trial Court rejected the withdrawal application, reasoning that allowing withdrawal would result in the new suit being time-barred under Article 58 of the Limitation Act. 
• The petitioner contended that the Trial Court’s interpretation of the law was incorrect and sought to set aside the rejection order. 
• The matter was hence before the High Court.  

What were the Court’s Observations?  

• Order 23 Rule 1 of CPC allows the plaintiff to withdraw a suit with liberty to file a fresh one if the suit suffers from formal defects or if sufficient grounds exist for instituting a fresh suit. 
• Order 23 Rule 2 of CPC specifies that a fresh suit filed after withdrawal is subject to the same limitation laws as if the first suit had not been filed. 
• The High Court held that in the present facts the Trial Court erroneously applied Article 58 to a case involving immovable property where Article 65 was more relevant. 
• The High Court recognized that the withdrawal application met the criteria under Order 23 Rule 1 since formal defects were cited as the basis. 
• The High Court emphasized that the law of limitation would apply afresh to the new suit upon withdrawal. 
• Thus, the High Court set aside the order of the Trial Court. 
• The plaintiff was granted permission to withdraw the suit with the liberty to file a fresh one, subject to payment of Rs. 1,000/- as costs to compensate the defendant.

What is Withdrawal of Suit under Order 23 of CPC?

• Rule 1 (1) of Order 23 provides: 
  • The plaintiff can abandon the entire suit or a part of their claim against all or any defendants. 
  • If the plaintiff is a minor or falls under the protection of rules 1 to 14 of Order XXXII, they cannot abandon the suit or any part of the claim without the court's permission. 
• Rule 1 (2) of Order 23 provides: 
  • For minors or protected persons, an application for court permission to abandon the suit must be filed. 
  • The application must include an affidavit from the plaintiff's next friend. 
  • If the minor or protected person is represented by a pleader, the pleader must certify that the abandonment is in the best interest of the plaintiff. 
• Rule 1 (3) of Order 23 provides: 
  • The Court may allow withdrawal if: 
    • The suit would fail due to a formal defect. 
    • Sufficient grounds exist for filing a fresh suit. 
  • The Court can grant permission to withdraw the suit or part of the claim with liberty to file a fresh suit on the same subject matter. 
  • The Court may impose terms it deems appropriate while granting such permission. 
• Rule 1 (4) of Order 23 provides: 
  • If the plaintiff abandons a suit or part of a claim under sub-rule (1),or withdraws without permission under sub-rule (3), specific consequences apply. 
  • The plaintiff will be liable to pay costs as determined by the court. 
  • The plaintiff is barred from filing a fresh suit on the same subject matter or part of the claim. 
• Rule 1 (5) of Order 23 provides: 
  • The court cannot allow one plaintiff to abandon or withdraw a suit or part of a claim without the consent of the other plaintiffs. 
• Rule 2 of Order 23 provides that limitation law is not affected by first suit. 
  • If a fresh suit is filed with permission after withdrawal, the plaintiff is bound by the law of limitation as if the original suit was never filed.

What are the Case Laws on Withdrawal under Order 23? 

• K.S. v. Kokila (2000): 
  • The Court held that the grant of leave under sub-rule (3) of Rule 1 is at the discretion of the Court. 
  • The Court held that there are two alternatives for leave: 
    • The Court can allow leave if the suit is likely to fail due to a formal defect. 
    • Alternatively, the Court can grant leave if there are sufficient grounds to allow the plaintiff to file a fresh suit for the same subject matter or claim. 
  • Under clause (b) of sub-rule (3), the Court must be satisfied that there are sufficient grounds to allow the plaintiff to institute a fresh suit on the same cause of action or part of the claim.
• Sarguja Transport Service v. STAT (1987): 
  • The Court discussed in this case the applicability of Order 23 on writ petitions. 
  • The Supreme Court observed that while the CPC does not directly apply to writ proceedings, its procedural principles are often followed by High Courts in writ petitions. 
  • The Court extended the principle of Order 23 Rule 1(3) to writ petitions under Articles 226 and 227, based on public policy to prevent "Bench hunting tactics" and to promote justice. 
  • If a petitioner withdraws a writ petition without leave from the High Court to file a fresh one on the same cause of action, it is considered an abandonment of the remedy, barring them from filing a fresh petition on the same issue. 
  • The ruling does not apply to writ petitions involving the enforcement of fundamental rights or personal liberty, as they stand on a different legal footing.