Law: Civil Procedure Code (V of 1908)

Section: O.XXIII,R.1,3,4

Civil Procedure Code, 1908 (V of 1908)-- ----O. XXIII, R. 1--Application for seeking simpliciter withdrawal of suit--Matter of Right--Suit for partition of inherited property and cancellation of mutation--Partially decreed--Appeal--Accepted--Decree was reversed--Challenge to--This argument lacks legal substance and bound to repel because plain language of Rule XXIII Rule 1 reveals that at any time after institution of suit a plaintiff may withdrawn or abandon suit as a whole or a part thereof without permission of Court and Rule does not prescribe any particular stage for withdrawal--Secondly, a suit can be withdrawn with permission to file a fresh one at level of Hon'ble Apex Court--So, on that analogy simple withdrawal can never be refused just because of stage of proceedings--Law does not contemplate any stage for withdrawal of a case conditional or unconditional--However, withdrawal is subject to satisfaction of Court and consequences contemplated by provisions of Order 23 CPC--There is no cavil with legal position that a plaintiff shall have a right of simple withdrawal of his/her case subject to consequence contemplated by Order 23(1) Rule(3) and conditions stipulated by rule (4) of Order 23 CPC--This is prerogative of plaintiff to withdraw his/her suit at any stage except in a case where preliminary decree has been passed and some rights have been created for someone else which is not case here--Of course, respondents have been burdened with financial loss, besides their time has been wasted, but nevertheless this by itself cannot constitute a valid and reasonable ground to decline request of withdrawal because unconditional withdrawal of suit is a legal and vested right of a plaintiff, subject to conditions and consequence contemplated by rule (3) and (4) of Order 23 of CPC--I am inclined to accept this application under Order XXIII Rule 1 CPC filed by applicant/petitioner and allow plaintiff to withdraw her suit subject to cost of Rs. 10,000/- (rupees ten thousand only) to be paid to respondents--Since suit has been withdrawn, therefore, it is dismissed as withdrawn and s and decrees passed by trial Court as well as appellate Court are hereby set…

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