Law: Civil Procedure Code (V of 1908)

Section: O.XXIII,R.1,S.107,O.IX,R.8,O.XVII,R.3

(a) Civil Procedure Code (V of 1908)--- ----O.XXIII, R.1, S. 107, O.IX, R.8 & O.XVII, R.3---Withdrawal of suit---Principles---Power of appellate court regarding withdrawal of suit---Plaintiff had absolute right to withdraw the suit at any stage of proceedings; where plaintiff wanted to file fresh suit, permission of the court was required---Court could not proceed with the suit suo motu in the absence of plaintiff---Under O.IX, R.8, C.P.C. court could dismiss suit where plaintiff did not appear when the suit was called for hearing---No provision in C.P.C. required the court to refuse permission to withdraw suit or compel plaintiff to proceed with the suit---Under O.XXIII, R.1, C.P.C. withdrawal of suit was complete when the court was informed to that effect---Where withdrawal of suit was unconditional, prayer for withdrawal could not be rejected and in the absence of any adjudication of rights no question of a speaking order could arise---Court could not limit, circumvent, abridge or destroy right to withdraw the suit---Order XXIII, R.1, C.P.C. conferred right on plaintiff to withdraw suit at any time after the institution against all or any of the defendants---Plaintiff could withdraw or abandon the entire or part of the claim---Where preliminary decree had created interest of third party, right to withdraw suit could not be exercised without consent of the third party---In suits for administration, accounts or partition plaintiff could not be allowed to withdraw suit where defendant had acquired a right in the subject matter and such right was likely to be defeated by withdrawal of the suit---Where purpose of withdrawal of proceedings was only to prevent the court from passing an order undoing a wrong or injustice done to a party or to deprive the Government or public functionary of receiving or recovering the public dues or to defeat the ends of justice, the court could decline withdrawal of suit---Appeal was continuation of suit---Under S.107, subsection 2, C.P.C. appellate court was competent to grant permission to withdraw suit as appellate court had all the powers of court of original jurisdiction/Trial Court---Appeals were accepted. Mrs. Afroz Shah…

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