Decoding Order 23 Rule 1(3) of Civil Procedure Code, 1908: Withdrawal of Suit and Institution of Fresh Suit on Same Cause of Action and its Finer Nuances

A. Introduction

Section 12 of the Code of Civil Procedure, 1908[1] (hereinafter referred to as “CPC” for sake of brevity) provides that where a plaintiff is precluded from instituting a further suit in respect of a particular cause of action, then he shall not be entitled to institute a suit in respect of that cause of action in any court to which the CPC applies. The rationale underlying this provision is the prevention of (i) endless litigation; (ii) wastage of court’s precious time; and (iii) abuse of legal procedure by litigants. Interest reipublicae ut sit finis litium i.e. it is in the interest of the society that litigation comes to an end. Therefore, if a plaint attracts Section 12 CPC, it is automatically not maintainable.

However, like almost every rule of law this one also has exceptions. One such exception is provided in sub-rule (3) of Order 23 Rule 1 CPC[2] [hereinafter referred to as “Order 23 Rule 1(3)” or “sub-rule (3)” for sake of brevity]. Simply put, under sub-rule (3), the trial court is empowered, upon an application, to allow a plaintiff to withdraw his defective suit, take necessary steps to cure that defect and then institute a fresh suit on the same cause of action and claiming same reliefs. This provision is quite important since in its absence, at a later stage of trial the maintainability of suit would be questioned by the defendant which could potentially make the entire process of civil trial (which normally takes decades in our country) infructuous, thereby robbing the plaintiff of his legal rights and remedies and leading to wastage of the court’s time and resources as well.

Over the years, Order 23 Rule 1(3) and its nuances have been interpreted by the Supreme Court of India and various High Courts across the country, sometimes leading to contradicting judicial opinions as well. Considering the fact that the commentary on this topic is limited, the purpose of this article is to analyse the jurisprudence pertaining to sub-rule (3) of Order 23 Rule 1 specifically and eventually highlight certain points that a plaintiff should keep in mind while withdrawing his suit if he desires to institute a fresh one on the same cause of action.

B. Order 23 Rule 1 CPC, 1908

Order 23 CPC provides for “withdrawal and adjustment of suits”. Rule 1 of this Order, as it stands today, was introduced vide the Code of Civil Procedure (Amendment) Act, 1976. It has 5 sub-rules, which are reproduced hereunder:

1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied—

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff—

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without-the permission referred to in sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the court to permit one of the several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

Order 23 Rule 1 makes a distinction between two types of withdrawal[3]:

1. Absolute withdrawal of the suit, termed as “abandonment of suit” made under sub-rule (1).— The plaintiff may abandon the suit or a part of his claim as a matter of his right and in this scenario, he shall be barred from instituting another suit on the same cause of action. This right cannot be reserved by the plaintiff without the court’s leave.
2. Conditional withdrawal of the suit with liberty to institute a fresh one on the same cause of action with the leave of trial court made under sub-rule (3).— This would enable the plaintiff to avoid the bar under Section 12 CPC. “Invito beneficium non dature. the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order 23.”[4]

If the plaintiff fails to withdraw the suit as specifically provided by sub-rule (3), he shall be barred from instituting a fresh suit on the same cause of action as is provided by sub-rule (4). It is also worth mentioning here that an order of trial court under sub-rule (3) is neither a decree nor an appealable order. However, such orders can be reviewed and revised.

It must be noted that sub-rule (3) of Order 23 Rule 1 is stringently adhered to by the courts. Any type of ambiguity or loose ends or vagueness on the part of the plaintiff can adversely affect his cause to a great extent, potentially leaving him remediless. An illustration of the same can be seen in Bakhtawar Singh v. Sada Kaur[5] wherein the Supreme Court observed that the plaintiff had failed to produce any evidence to show that leave to withdraw the suit and to institute a fresh one on the same cause of action was granted by the trial court under Order 23 Rule 1(3). The application praying for the said relief was not produced and the order of the trial court did not record what was the “formal defect” or “sufficient ground” by virtue of which the suit was sought to be withdrawn. The Supreme Court held that in light of these circumstances the plaintiff cannot be allowed to institute a fresh suit on the same cause of action.

C. Judicial interpretation of sub-rule (3) of Order 23 Rule 1 and its nuances

1. “Formal defect” under clause (a) of sub-rule (3)

The Supreme Court in V. Rajendran v. Annasamy Pandian[6], after considering the judicial opinions of various High Courts, has held that “formal defect” is a defect of form prescribed by the rules of procedure. For example, want of notice under Section 80 CPC, improper valuation of the suit, affixing insufficient court fee, ambiguity regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action, etc. The Supreme Court further observed that “formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. It can be observed that many of the “formal defects” pointed out by the Supreme Court are grounds for rejection of plaint under Order 7 Rule 11 CPC.

2. Other “sufficient grounds” under clause (b) of sub-rule (3)

Since various High Courts have made diametrically opposite interpretations of the term other “sufficient grounds” in sub-rule (3)(b), it has always remained an area of contention, as will be seen from the case laws discussed herein. On one hand, the Madras High Court in C. Jagadeesan v. T. Baskaran[7], by relying on its own decision in Duraikannu v. Malayammal[8], has held that other “sufficient grounds” must be considered ejusdem generis[9] with “formal defect” in clause (a) of sub-rule (3) since such sufficient ground means a defect that does not result from the plaintiff’s own fault. Plaintiff’s failure to prove his case is not “sufficient ground” within the ambit of clause (b) of sub-rule (3).

On the other hand, the Orissa High Court has taken the exact opposite view in Trinath Basant Ray v. Sk. Mohamood[10]. In a reference made to it, the High Court relied on the Supreme Court’s decision in K.S.  v. Kokila[11] wherein it had observed that:

13. … The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first, where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim…

Therefore, the Orissa High Court held that other “sufficient grounds” must not be restricted to “formal defect” or defects analogous thereto and the term is wide enough to include other defects as well since this is what the legislature had intended by putting “formal defect” and “sufficient grounds” in two different clauses of sub-rule (3).

It must be noted these contradicting judicial opinions were rendered recently in the same year (2019). Similarly, over the course of time, different High Courts have taken either one of the abovementioned views. The Supreme Court had an opportunity to specifically settle this question of law once and for all and perhaps decide the ambit of other “sufficient grounds” as well in V. Rajendran v. Annasamy Pandian[12]. However, it deliberately chose not to interpret the said term since the matter before it involved a formal defect only.

3. “Subject-matter” under sub-rule (3)

The Supreme Court, in Vallabh Das v. Madan Lal[13], had to consider and define the term “subject-matter” since it is not defined by CPC. After considering the objective and purpose underlying sub-rule (3), it held that “subject-matter” means “cause of action” for instituting the suit, “relief” claimed by the plaintiff in such suit and “the bundle of facts that must be proved by the plaintiff in order to obtain relief from the court”. The Gujarat High Court has made the same interpretation in Narayan Jethanand v. Asapuri Vijay Saw Mill[14].

4. Discretionary power of court

Sub-rule (3) of Order 23 Rule 1 is an exception to the principle of non-suit. An application under sub-rule (3) cannot be treated at par with absolute liberty given to the plaintiff under sub-rule (1). Under sub-rule (3), a prayer is sought for the trial court’s leave to withdraw the suit after satisfying it of the existence of a formal defect or other sufficient ground, as the case may be. After hearing the plaintiff, the power to allow withdrawal of the suit with liberty to institute a fresh one on the same cause of action is a discretionary power of the court.[15] However, it is the duty of the court to be satisfied about the existence of “formal defect” or other “sufficient ground” before granting the leave under sub-rule (3).[16]

5. Effect of absence of a specific prayer for “liberty to institute a fresh suit” in the withdrawal application under Order 23 Rule 1

In Jonnala Sura Reddy v. Tityyagura Srinivasa Reddy[17], the Andhra Pradesh High Court has held that if the previously instituted suit is withdrawn vide a withdrawal memo wherein the plaintiff fails to make a specific prayer clearly seeking the trial court’s leave to institute a fresh suit on the same cause of action (although he intends to do so), then such subsequent suit is barred as is provided by sub-rule (4). Plaintiff cannot afford to make this costly error in any circumstances.

6. At what stage of the trial can the plaintiff move an application under sub-rule (3)?

This question came before the Kerala High Court in Santhosh Vergis v. Shire Villa Owners Assn.[18]. An application under Order 23 Rule 1(3) was dismissed by the trial court on the grounds that it failed to disclose any “formal defect” and it was moved at the stage of final hearing of the matter and therefore was moved at a belated stage. When the matter was brought before it, the Kerala High Court held that a plaintiff can move the said withdrawal application at any stage of trial of civil suit (before its final disposal) thereby setting aside the trial court’s order. However, the plaintiff cannot withdraw a suit from which an appeal is preferred since it would destroy the decree passed by the trial court as well as the rights vesting in the defendant unless very strong reasons for withdrawal are shown that would not affect or disturb any party’s rights.[19]

7. Can the subsequent suit be instituted before moving an application under sub-rule (3)?

This question was considered and answered by the Andhra Pradesh High Court in M.A. Faiz Khan v. Municipal Corpn. of Hyderabad[20]. The plaintiff instituted a second suit on the same cause of action and claiming same reliefs before withdrawing the previously instituted suit, which he should have by following the process under sub-rule (3). When the matter was brought before it, the Andhra Pradesh High Court considered that whether doing so would bar the trial court in which the previous suit was instituted from granting the leave under Order 23 Rule 1(3) CPC? The Court held that the plaintiff’s inadvertence would at best amount to an irregularity that can be cured. The court dealing with an application under sub-rule (3) should be only concerned with whether the conditions mentioned therein are satisfied. It should not be concerned whether such fresh suit is already filed or not. It was held that this approach would be salutary and in the interest of justice.

8. Can the defendant raise an objection against a withdrawal application under Order 23 Rule 1?

This question came before the Supreme Court in Anil Kumar Singh v. Vijay Pal Singh[21]. The Supreme Court held that when a plaintiff files an application for simple withdrawal of suit under sub-rule (1), he does so as a matter of his right and the defendant cannot compel the plaintiff to prosecute the suit. The defendant can merely ask the court to impose costs upon the plaintiff. However, the defendant has all the right to object to an application made by the plaintiff under sub-rule (3) and the court shall decide whether or not the application should be allowed on its merits.

9. Is partial allowing of application under sub-rule (3) possible?

This issue came before the Madras High Court in N. Iyyaswamy v. B. Padmini[22].The Madras High Court has held that while dealing with an application under sub-rule (3) of Order 23 Rule 1, the trial court has to either allow it in toto or dismiss it. There cannot be a partial allowing of the application, thereby dismissing the suit as withdrawn and not granting liberty to the plaintiff to file a fresh suit.

10. Does sub-rule (3) apply to writ petitions and special leave petitions?

In Sarguja Transport Service v. STAT[23], the Supreme Court considered the consequence and effect of withdrawal of a writ petition filed under Articles 226 and 227 of the Constitution without the leave of the High Court to file a fresh one on the same cause of action. It observed that the CPC does not directly apply to writ proceedings although the procedure prescribed by it, as far as it can be made applicable, is followed by the High Courts while dealing with writ petitions. The Supreme Court extended the principle underlying Order 23 Rule 1(3) to writ petitions under Articles 226 and 227 on the ground of public policy to advance the cause of justice. It observed that doing so would also discourage the petitioners from indulging in “Bench hunting tactics”. It held that when the petitioner withdraws his writ petition without the leave of the High Court to file a fresh petition on the same cause of action, then he should be deemed to abandon this remedy and shall be barred from filing a fresh writ petition. Such withdrawal will not bar the plaintiff from pursuing other remedies since it does not operate as res judicata. However, the Supreme Court clarified that this judgment will not be applicable to writ petitions involving enforcement of fundamental rights or personal liberty since such petitions stand on a different footing.

The reasoning in Sarguja Transport Service[24] was applied by the Supreme Court in Upadhyay & Co. v. State of U.P.[25], to arrive at the conclusion that Order 23 Rule 1(3) would also apply to special leave petitions filed under Article 136 of the Constitution as well.

However, it must be noted that the discretionary powers of higher judiciary under Articles 226 and 227 as well as Article 136 of the Constitution, for the furtherance of causes of justice and equity, are very wide. Therefore, Order 23 Rule 1(3) will have a relatively diluted and less stringent application in proceedings under these provisions.

D. Conclusion

At the time of withdrawing a suit with the intention to institute a fresh one on the same cause of action, the plaintiff should keep the following points in mind:

1. The provision of sub-rule (3) of Order 23 Rule 1 is adhered to strictly and applied stringently, considering the rationale underlying it. Therefore, the plaintiff must be very careful at the time of moving a withdrawal application under this provision. In the said application, the plaintiff must specifically mention and satisfy the trial court of the existence of a “formal defect” or other “sufficient ground” by virtue of which he should be allowed to withdraw the suit and granted the liberty to institute a fresh one on the same cause of action after curing that defect. Further, the said withdrawal application must be moved at the earliest instancee. as soon as the defect is discovered by the plaintiff and in any case before the disposal of the suit. The plaintiff should ideally make such withdrawal before instituting the subsequent suit to avoid any confusion and irregularity.
2. In the said withdrawal application, the plaintiff should make a specific prayer for the court’s leave to institute a fresh suit on the same cause of action, without any ambiguity or vagueness. Otherwise his cause would be adversely affected, potentially leaving him remediless. Further, the plaintiff should make disclosure of previously instituted suit and produce withdrawal application as well as the reasoned order of the trial court allowing the said withdrawal application, before the court dealing with the subsequent suit. Failure to follow this entire process would result in a bar under sub-rules (3) and (4) of Order 23 Rule 1 read with Section 12 CPC, 1908.
3. The courts have discretionary power under sub-rule (3) of Order 23 Rule 1. However, once the court is satisfied that a formal defect or a sufficient ground exists then it may allow the plaintiff to withdraw the suit and shall allow him to institute the said fresh suit. The application should be either allowed or dismissed in its entirety.
4. Interpretation of “sufficient ground” under clause (b) of Order 23 Rule 1(3) has remained an area of contention for a considerable time. In the author’s humble opinion, the interpretation of the Orissa High Court stands on a better footing since it has taken into consideration the observation of the Supreme Court in S. Bhoopathy[26] as well as the legislative intent for arriving at its conclusion. Therefore, relief under sub-rule (3) can be availed even if the suit is tainted by defects other than formal defects. But the ambit of other “sufficient grounds” must be determined to prevent its abuse and misuse.
5. Order 23 Rule 1(3) not only applies to civil suits but also extends to writ petitions filed under Articles 226 and 227 of the Constitution and special leave petitions filed under Article 136 of the Constitution. Therefore, the conclusions arrived at hereinabove should be construed as being applicable to these petitions as well, albeit with a certain degree of laxity.

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*Lawyer based in Gujarat [BA LLB (Hons.) from Maharaja Sayajirao University of Baroda, Vadodara, Gujarat]. Author can be reached at  dhruvspatel100@gmail.com.

[1] Section 12 CPC, 1908. http://www.scconline.com/DocumentLink/kb11hJ0d.

[2]Order 23 Rule 1(3) CPC.  http://www.scconline.com/DocumentLink/usvfUbNF.

[3] K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.

[4] Sarguja Transport Service v. STAT, (1987) 1 SCC 5.

[5] (1996) 11 SCC 167.

[6](2017) 5 SCC 63.

[7] 2019 SCC OnLine Mad 13123.

[8] 2003 SCC OnLine Mad 593.

[9] According to the Merriam Webster Online Dictionary “ejusdem generis” is defined as “a rule of construction: general words (as in a statute) that follow specific words in a list must be construed as referring only to the types of things identified by the specific words.

[10] 2019 SCC OnLine Ori 103.

[11] (2000) 5 SCC 458, 464.

[12] (2017)5 SCC 63.

[13] (1970) 1 SCC 761.

[14] 1995 SCC OnLine Guj 101. http://www.scconline.com/DocumentLink/Xxy1MCSY

[15] V. Rajendranv. Annasamy Pandian, (2017) 5 SCC 63.

[16] K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.

[17] 2003 SCC OnLine AP 631.  http://www.scconline.com/DocumentLink/Hfyt49AR

[18] 2015 SCC OnLine Ker 9667. http://www.scconline.com/DocumentLink/64psGYr2

[19] R. Rathinavel Chettiar v. Sivaraman, (1999) 4 SCC 89.

[20] 1998 SCC OnLine AP 87.

[21] (2018) 12 SCC 584.

[22] 2020 SCC OnLine Mad 13418.

[23] (1987) 1 SCC 5.

[24] (1987) 1 SCC 5.

[25] (1999) 1 SCC 81.

[26] K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.