Order XXIII of the Code of Civil Procedure, 1908 (CPC), governs the procedures for the withdrawal and adjustment of suits in India. This order ensures that litigants have the flexibility to withdraw or adjust their claims under specified conditions, promoting judicial efficiency and fairness.

1. WITHDRAWAL OF SUIT OR ABANDONMENT OF PART OF CLAIM

Under Rule 1 of Order XXIII, a plaintiff possesses the right to withdraw a suit or abandon a part of their claim at any stage after its institution. This provision allows plaintiffs to discontinue proceedings against all or any of the defendants. However, if the plaintiff is a minor or a person to whom the provisions of Order XXXII apply, the suit or any part of the claim cannot be abandoned without the court’s permission. This safeguard ensures the protection of interests for those who may not fully comprehend the implications of such actions.

2. WITHDRAWAL WITHOUT LEAVE OF THE COURT

A plaintiff may withdraw a suit without seeking the court’s permission. However, such withdrawal precludes the plaintiff from instituting any fresh suit on the same subject matter. This principle upholds the legal maxim “nemo debet bis vexari pro una et eadem causa,” meaning no one should be vexed twice for the same cause. Additionally, the court may impose costs on the plaintiff for the withdrawal, ensuring that defendants are compensated for any inconvenience caused.

3. WITHDRAWAL WITH LEAVE OF THE COURT

To file a fresh suit on the same subject matter after withdrawal, the plaintiff must obtain the court’s permission. The court grants such permission if it is satisfied that:

• The suit must fail due to a formal defect.
• There are sufficient grounds for allowing the plaintiff to institute a fresh suit.

Formal defects refer to procedural errors that do not affect the merits of the case, such as misjoinder of parties or non-payment of proper court fees. The court exercises discretion in granting leave, ensuring that the plaintiff does not misuse this provision to harass the defendant or gain an undue advantage.

4. COMPROMISE OF SUIT

Rule 3 of Order XXIII addresses situations where parties reach a lawful agreement or compromise. If the court is satisfied that the suit has been adjusted wholly or in part by such an agreement, it shall record the agreement and pass a decree accordingly. The agreement must be in writing and signed by the parties, ensuring authenticity and clarity. This provision encourages amicable settlements, reducing the burden on courts and fostering harmonious relations between parties.

5. BAR TO SUIT

Rule 3A stipulates that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This provision prevents parties from challenging a compromise decree by initiating a fresh suit, thereby upholding the finality of judgments and promoting legal certainty.

6. NO AGREEMENT OR COMPROMISE IN REPRESENTATIVE SUITS WITHOUT LEAVE OF COURT

In representative suits, no agreement or compromise shall be entered into without the court’s express permission. Any such agreement without leave is deemed void. This safeguard ensures that the interests of all represented parties are protected, and no compromise is made to their detriment without judicial oversight.

7. TRANSPOSITION OF DEFENDANTS AS PLAINTIFFS

Rule 1A allows a defendant to be transposed as a plaintiff if the original plaintiff withdraws or abandons the suit. The court considers whether the defendant seeking transposition has a substantial question to be decided against the other defendants. This provision ensures that the withdrawal by the plaintiff does not unjustly affect the rights of defendants who have a legitimate interest in the subject matter of the suit.

8. CASE LAWS ILLUSTRATING ORDER XXIII

• K.S. Bhoopathy v. Kokila: In this case, the Supreme Court held that the court must consider all relevant aspects before granting permission to withdraw a suit with liberty to file afresh. The court emphasized that such permission should not be granted if it results in defeating a right accrued to the defendant or causes injustice.

• Hulas Rai Baij Nath v. Firm K.B. Bass & Co.: The Supreme Court observed that the plaintiff has an unqualified right to withdraw a suit and the court cannot compel the plaintiff to proceed with it. However, this right is subject to the condition that the plaintiff cannot institute a fresh suit on the same cause of action without the court’s permission.

9. LEGAL MAXIMS AND PRINCIPLES

• Invito beneficium non datur: The law does not force a benefit on an unwilling person. This principle underlies the plaintiff’s right to withdraw a suit, as the court cannot compel a plaintiff to continue litigation against their will.

• Nemo debet bis vexari pro una et eadem causa: No one should be vexed twice for the same cause. This maxim is reflected in the provision that prevents a plaintiff from instituting a fresh suit on the same subject matter after withdrawal without the court’s permission.

10. PROCEDURE FOR WITHDRAWAL AND COMPROMISE

• Application for Withdrawal: The plaintiff must file an application stating reasons for withdrawal. If seeking to withdraw with liberty to file afresh, the application should highlight the formal defect or sufficient grounds justifying such withdrawal.

• Court’s Consideration: The court examines the reasons provided, ensuring that the withdrawal is not malafide or prejudicial to the defendant’s rights. The court may impose terms, including costs, to prevent misuse of the process.

• Recording Compromise: For compromises, the court verifies the legality and voluntariness of the agreement. Once satisfied, the court records the compromise and passes a decree in accordance with its terms.

11. IMPLICATIONS OF WITHDRAWAL AND COMPROMISE

• Res Judicata: A withdrawal without the court’s permission bars the plaintiff from filing a fresh suit on the same cause of action without permission.