PLD 2021 SC 373
Civil Procedure Code (V of 1908)---
----O.XXIII, R. 1---Withdrawal of suit with permission to file fresh suit, application for---Scope---Where the plaintiff had applied for the withdrawal of his suit or had sought the abandonment of his claim or a part thereof, with the permission of the Court to bring a fresh suit, it was within the authority of the Court obviously with the parameters of O.XXIII, R. 1(2)(a) & (b), C.P.C to either decline such request or allow the permission--- In the eventuality of refusal the suit should not be dismissed simpliciter, rather the request for permission alone be turned down and the suit should continue, thus obviously the plaintiff shall have a right, to choose his further course of action and to decide whether he should withdraw the suit or not--- In the other eventuality, there did not seem any problem except that the Court had to record its reasons justifying the permission, which in any case shall be so recorded in either of the eventuality---However, the problem was faced where the request was not declined in express and clear words, yet the suit was 'dismissed as withdrawn' without recording the reasons; though such an order shall be bad for failure to assign the reasons and if not assailed on that ground by the other side it shall attain finality, but in the situation it should be implied, considered and deemed that the Court had found it to be a fit case for the permission and had granted the plaintiff permission to file a fresh suit, because this was the [safer] course, which should be followed in the interest and promotion of justice, otherwise serious prejudice shall be caused to the plaintiff who shall have to face the bar of O.XXIII, R.1(3), C.P. and shall be left in a flummox.
Civil Procedure Code (V of 1908)---
----O.XXIII, R. 1(2)(b)---Withdrawal of suit with permission to file fresh suit, application for---Permission by Court to withdraw suit with liberty to institute fresh suit if "there are other sufficient grounds" [O. XXIII, R. (1)(2)(b), C.P.C]---'Grounds'---Scope and meaning---For O. XXIII, R. (1)(2)(b), C.P.C to be at all applicable it was necessary that the facts disclosed in the application seeking permission must, in law, amount to a "ground"; it was only then that the provision became applicable, requiring the court to satisfy itself as to the sufficiency (or lack) of the stated ground---However, if what was stated in the application was not a "ground" at all then obviously no question would arise of the court having to consider whether there was any sufficiency or lack thereof---Only when the facts disclosed what could, in law, be regarded as a "ground" that it became necessary for the court to consider the sufficiency (or lack) thereof---In the present case the application for withdrawal of suit to the extent of one of the defendants stated that the plaintiff "for the time being doesn't want to proceed further against" the second defendant, and that the plaintiff "reserves its rights to sue the said defendant whenever the necessity so arises"---Such purported ground, in law, was no ground at all---Plaintiff could not be allowed to file his suit and then, at his sweet will and pleasure, exit the litigation only to enter the arena again as and when he pleased---Trial Court had rightly dismissed the suit as withdrawn and disallowed the filing of a fresh suit-
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