K.Subbaiah v. Thambiraja

C.R.P(MD)No.689 of 2022 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.04.2022

CORAM

THE HON'BLE MRS.JUSTICE S.ANANTHI C.R.P(MD)No.689 of 2022 and C.M.P(MD)No.2840 of 2022 K.Subbaiah

...Petitioner/Plaintiff

Vs.

Thambiraja

...Respondent/Defendant

PRAYER: Civil Revision Petition filed under Article 227 of The Constitution of India, to set aside fair and decreetal order dated 21.03.2022 passed in I.A.No.14 of 2022 in O.S.No.4 of 2015 on the file of District Munsif Court, Devakottai.

For Petitioner : Mr.M.P.Senthil For Respondent : No Appearance

ORDER

The Civil Revision Petition has been filed to set aside fair and decreetal order dated 21.03.2022 passed in I.A.No.14 of 2022 in O.S.No.4 of 2015 on the file of District Munsif Court, Devakottai. 2.Considering the nature of relief to be granted, issuance of notice to the respondent is dispensed with.

3.I.A.No.14 of 2022 was filed by the revision petitioner/plaintiff under Order 23 Rule 1 r/w Section 151 of CPC, for withdrawal of suit, which was dismissed by the learned District Munsif, Devakottai on the ground that he has not sought any liberty to file fresh suit on same cause of action.

4.As per Order 23, Rule 1 of CPC., 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.

5.The Honourable Supreme Court in the decision reported in (2017) 6 CTC 771 (Anil Kumar Singh Vs. Vijay Pal Singh) held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 1/2

C.R.P(MD)No.689 of 2022

24) In our considered opinion, when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in sub-rule (4).

25) The reason is that while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him. 6.Therefore, for withdrawal of the suit, he need not seek permission of the Court to file a petition to withdraw the suit. So the learned Judge ought have allowed the petition but he misconstrued that the petitioner has filed this petition for withdrawal and disposal application. But the petitioner has filed only withdrawal of the suit. So the Court below should have allowed the petition.

7.In view of the above, this Civil Revision Petition is allowed and the order dated 21.03.2022 made in I.A.No.14 of 2022 in O.S.No.4 of 2015 passed by the learned District Munsif Court, Devakottai, is hereby set aside. No costs. Consequently connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CS I) // True Copy // / /2022 Sub Assistant Registrar(CS) vsd To The District Munsif Court, Devakottai.

+1 CC to M/s.M.P. SENTHIL, Advocate ( SR-16829[F] dated 06/04/2022 ) C.R.P(MD)No.689 of 2022 and C.M.P(MD)No.2840 of 2022 MGJ(10.06.2022) 2P 3C https://hcservices.ecourts.gov.in/hcservices/ 2/2