Justice R. Narayana Pisharadi of Kerala High court observed that the plaintiff has no absolute right to withdraw the suit. The court further observed that the appellate court shall look for evidence and sustainable reasons before granting the plaintiff to file a secondary suit apart from the primary one. The points which need to be looked at into in a considerable manner should indicate that the plaintiff has validated justified reasons and cause to withdraw the suit made by him.
The court was considering a petition where the plaintiff was allowed to file a fresh suit by withdrawing a previous suit made by him on the same subject matter by the appellate court. Order XXIII Rule 1(1) of the Code of Civil Procedure states that a defendant shall be liable to withdraw the applied suit/ suits and allowed to apply for a fresh one only when the court is satisfied that the plaint has some formal errors or the plaintiff has reasonable grounds to withdraw of such.
Mere withdrawal of the suit, without asking anything more, can always be permitted.
The plaintiff can abandon a suit or a part of his claim as a matter of right without the permission of the court. The plaintiff need not obtain any permission from the Court to abandon the suit. He has the right to file an application to abandon his suit or part thereof at any time after its filing. In such a case, he will be precluded from suing again on the same cause of action. A defendant cannot compel the plaintiff to proceed with the suit.
When the plaintiff files an application under sub-rule (1) of Rule 1 of Order XXIII of the Code and prays for permission to withdraw the suit, whether in full or part, he is always at liberty o 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 costs. The reason is that while making a prayer to withdraw the suit under sub-rule (1) of Rule 1 of Order XXIII of the Code, the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. Mere withdrawal of the suit, without asking anything more, can always be permitted."
