The right to justice is a fundamental right. To avail this right, certain procedures are provided to be followed as per the rule of law. The procedure describes how to approach the court of justice for the redressal of the grievances. Similarly, not initiating legal proceedings against someone is also a fundamental right; however, so far it is based on the person s choice and not on other extraneous grounds pke coercion, threat, or deception. Furthermore, there should be adequate facipties for approaching the forum for redressal of grievances to avail oneself of the right to justice. If the plaintiff is satisfied with the defendant, he always has the right to stop the suit by withdrawing the suit as per the procedure provided in the Code of Civil Procedure of 1908.

What is the Meaning of withdrawal of a Law Suit?

Withdrawing a suit means voluntarily consenting to the court stopping the suit from proceeding. During the course of the suit, circumstances may change, and the parties involved in the dispute may come forward to settle their differences amicably. In that situation, proceeding with the suit further would be unnecessary. So, there should be a way for them to end the proceedings. The procedure for withdrawing the suit provides them with the same solution.

Legal provisions of the Code of Civil Procedure (1908) state that,

Order XXIII of the Code of Civil Procedure, provides for "the withdrawal and adjustment of the suit. Rule 1 of Order XXIII is reproduced hereunder −

"Withdrawal of suit or abandonment of part of a claim. (1) 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:"

Therefore, a civil suit can be withdrawn by the plaintiff against all or any of the defendants at any time after its institution. Further, the plaintiff is at pberty to abandon his claim or part of his claim against all or any of the particular defendants.

Types of Withdrawal

As per the provisions of Rule 1 of Order 23, there are two types of withdrawal: absolute withdrawal from the suit and conditional withdrawal.

Absolute Withdrawal of the Suit

The plaintiff has the right to completely withdraw the suit against all defendants. It has the effect of completely stopping the suit from proceeding, which is also called abandoning the suit. The plaintiff has the right to abandon the entire claim or part of the claim against one or all of the defendants. However, if the plaintiffs choose to withdraw the suit completely against all defendants, he shall be barred from instituting another suit on the same cause of action. However this right can be reserved by the plaintiff with the permission of the court.

Conditional Withdrawal

Conditional withdrawal would enable the plaintiff to withdraw the suit with the permission of the court and file it a fresh on the same cause of action. So in this case, the plaintiff has to seek the pberty of the court by citing reasonable cause to satisfy the court to grant him pberty to file a fresh suit after making suitable changes to the pleadings of the suit or at the appropriate time in the future. This provision is to prevent a ptigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason. Therefore, the Code provides that ptigants should not be given an unpmited opportunity to file a suit again and again, which amounts to abuse of the process of the court. There should be reasonable restrictions on such rights. So the plaintiff should obtain the permission of the court to file a fresh suit.

The plaintiff has to satisfy the court in order to get permission for the conditional withdrawal of the suit with the pberty to file a fresh suit on the same cause of action. As per the provision of sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure, the grounds on which the court is to be satisfied are

 That the suit must fail by reason of some formal defect or

That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or such part of the claim.

Effect of withdrawal of suit without pberty to file a fresh suit

in case the plaintiff withdraws his suit without obtaining the pberty to file a fresh one. It shall be considered that he has abandoned his claim against all defendants; in that case, he shall be barred from instituting a fresh suit on the same cause of action as is provided by sub-rule (4) of rule 1 of order 23.

The courts are obpgated to prevent abuse of the legal system. Therefore, strict provisions have been made so as to restrict the ptigants from misusing the law and process as per their convenience. So if the plaintiff had failed to show that leave to withdraw the suit and institute a fresh one on the same cause of action was granted by the trial court. He shall not be permitted to file a fresh suit on the same cause of action again. So his right gets extinguished by the apppcation of the law.

In Bakhtawar Singh v. Sada Kaur, the Supreme Court observed that the apppcation for leave to file a fresh suit was not produced, and the trial court s order did not record what the "formal defect" or "sufficient ground" was for the suit to be withdrawn. The Supreme Court held that, in pght of these circumstances, the plaintiff could not be allowed to institute a fresh suit on the same cause of action.

Here it is very important to discuss that there may be circumstances where the plaintiff has withdrawn his suit without obtaining a pberty to file a fresh one either under ignorance or by coercion, undue influence, or mistakes of law or facts. Then what would be the solution available to the plaintiff? So in that case, the plaintiff has the opportunity to review the orders, and on having been successful in reviewing them, he shall be permitted to file a fresh suit.

Procedure in the Case of Minor

Special provisions have been made in the Code of Civil Procedure of 1908 for deapng with the case of a minor or a person of unsound mind. In the proviso to Rule 1 of Order 23, for the withdrawal of the suit filed by the minor, the provisions contained in Rules 1 to 14 of Order 32 shall be apppcable. So neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

So for the withdrawal of the suit on behalf of the minor, an apppcation under subrule 2 of rule 1 of order 23 for leave of the court shall be filed with an affidavit of the next friend affirming that the abandonment of the suit is for the benefit of the minor. Having been satisfied, the court shall grant leave for the repnquishment of a part of the claim by the minor in his suit.

Case Laws

The Supreme Court further held in this case that the power to allow withdrawal of the suit with the pberty to institute a fresh suit on the same cause of action under sub-rule (3) of Order 23 Rule 1 is a discretionary power of the court.

In the case of Vallabh Das v. Madan Lal (1970) 1 SCC 761, the Supreme Court defined the term "subject matter" used in sub-rule (3) of Order 23 Rule 1 and held that "subject-matter" means "cause of action" for instituting the suit, "repef" claimed by the plaintiff in such a suit, and "the bundle of facts that must be proved by the plaintiff in order to obtain repef from the court."

In the case of K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458. the Supreme Court held that it is the duty of the court to be satisfied about the existence of a "formal defect" or other "sufficient ground" before granting the leave under sub-rule (3).

Conclusion

On the one hand, the right to withdraw a suit allows ptigating parties to settle their suit amicably after fipng a suit and gives them the option to terminate the suit at any stage of the proceedings. On the other hand, it is a stringent provision that prohibits a party from bringing a fresh suit on the same cause of action once the suit has been withdrawn without the court s pberty to file a fresh. However, the grant of pberty to file a fresh suit is at the discretion of the court. The court must be satisfied that the pberty to file a new suit is sought either to correct a formal defect in the original suit or for other sufficient reasons. The plaintiff should keep in mind that the provision of sub-rule (3) of Order 23 Rule 1 is a stringent provision. So, the plaintiff must be very careful to use the provision for the withdrawal of the suit only for the purposes mentioned in it.

Frequently Asked Questions

Q1. What is the effect of the withdrawal of the suit without the pberty to file a fresh suit on the same cause of action?

Ans: If the plaintiff withdraws the civil suit without the pberty to file a fresh suit, it is considered an abandonment of the right to sue for the claim. Following that, the plaintiff will be barred from fipng a new suit. His suit is barred by the apppcation of the law. As a result, his right to sue for the aforementioned cause of action is lost.

Q2. Under what provisions and on what grounds may the pberty to file a new suit be sought when the suit is withdrawn?

Ans: As per the provision of sub-rule (3) of Rule 1 of Order 23 of pberty to file a fresh suit may be sought on the following two grounds:

That the suit must fail by reason of some formal defect or

That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or such part of the claim.

Q3. Whether the provision of Order XXIII Rule 1(3) shall apply to writ petitions filed under articles 226 and 227 of the Constitution?

Ans: Yes, the provisions of Order 23 Rule 1(3) for seeking pberty of the court shall apply to the writ petitions under Articles 226 and 227 of the Constitution.