Withdrawal of Suit by Plaintiff under CPC
Withdrawal of Suit by Plaintiff under CPC
1. What is Withdrawal of Suit?
Withdrawal of suit means the plaintiff voluntarily withdraws the suit before the final adjudication of the matter. It is an application made by the plaintiff to the court expressing his intention to discontinue the suit.
Withdrawal can be:
With permission of the court, or
Without permission of the court (in limited circumstances).
2. Legal Provisions Governing Withdrawal of Suit
The procedure for withdrawal of a suit is primarily governed by Order 23 of the CPC.
Order 23 Rule 1 CPC: Provides the procedure for withdrawal of suit or discontinuance of a suit.
Order 23 Rule 1(1):
The plaintiff may withdraw the suit at any stage by obtaining the permission of the court.
On such permission, the court may impose costs or terms as it deems fit.
Order 23 Rule 1(2):
If the suit is withdrawn before the defendant has appeared, no permission of the court is necessary.
The withdrawal is considered absolute and the plaintiff can file a fresh suit on the same cause of action.
3. Procedure for Withdrawal
The plaintiff files an application before the court stating the intention to withdraw the suit.
If the defendant has appeared and the suit has proceeded, the plaintiff needs the court’s permission.
The court can grant permission with or without costs.
The court may also impose conditions such as payment of costs to the defendant.
Once permitted, the suit stands withdrawn and the court record is closed.
If the defendant has not appeared, the plaintiff can withdraw without the court's permission.
4. Effect of Withdrawal
The suit stands dismissed without prejudice (if permission is granted).
The plaintiff can file a fresh suit on the same cause of action unless the withdrawal is with prejudice or barred by law.
The defendant cannot claim any costs if the withdrawal is without permission (before appearance).
If the withdrawal is after appearance and permission is granted, the court usually awards costs to the defendant.
5. Difference Between Withdrawal and Discontinuance
| Aspect | Withdrawal | Discontinuance |
|---|---|---|
| By Whom | By Plaintiff | By Plaintiff |
| Effect | Ends the suit in part or whole | Ends the suit in respect of one or more defendants |
| Court’s Permission | Required if defendant appeared | Required if defendant appeared |
| Right to Sue Again | Yes | Yes |
6. Case Law on Withdrawal of Suit
a) Smt. Sarla Verma & Ors. v. Delhi Transport Corporation (2009) 6 SCC 121
The Supreme Court held that withdrawal of the suit is a right of the plaintiff but subject to the court’s discretion if the defendant has appeared.
The court may impose conditions such as costs to balance interests.
The right to withdraw suit should not be used to harass defendants.
b) K.K. Verma v. Union of India, AIR 1967 SC 1199
The court emphasized that withdrawal of suit is allowed as a matter of grace and discretion.
It is subject to the principle of fair play and justice.
Courts can impose costs to deter misuse of withdrawal.
c) M.C. Chockalingam v. P. Sivanandam (AIR 1954 SC 95)
Withdrawal without court permission, where required, renders the withdrawal ineffective.
The court’s permission protects defendants’ rights.
7. Important Principles
Withdrawal without permission is valid only if the defendant has not appeared.
Once withdrawal is granted, the plaintiff can sue again on the same cause.
The court balances the right of plaintiff to withdraw and the interest of defendant.
Withdrawal cannot be used as a tool for delay or harassment.
8. Illustrative Example
If Mr. A sues Mr. B but later realizes the suit lacks merit or wishes to settle, Mr. A can apply to withdraw the suit. If Mr. B has already appeared and contested, the court may allow withdrawal with costs payable by Mr. A to Mr. B.
9. Summary
| Aspect | Explanation |
|---|---|
| Provision | Order 23 Rule 1 CPC |
| Withdrawal without permission | Allowed only if defendant has not appeared |
| Withdrawal with permission | Needed if defendant has appeared |
| Effect | Suit is dismissed without prejudice |
| Right to file fresh suit | Yes |
| Court’s discretion | May impose costs or conditions |
| Case law | Sarla Verma v. DTC, K.K. Verma, M.C. Chockalingam |
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