Point of Law: A conjoint reading of sub-rule (3) and (4) would make it clear that plaintiff can seek withdrawal of suit either in whole or in part with liberty to file a fresh one.

JUDGMENT :

The cardinal question came up for consideration is whether it is permissible to allow an application submitted for withdrawal of suit in part by rejecting the liberty to file a fresh one.

2. This Court in Mary Teacher and Others v. K.J.Varghese (2017 (1) KHC 830) had the occasion to consider as to under what circumstances a withdrawal of suit can be permitted and what are the requirements. But the question involved in the instant case is entirely different. The trial court did not grant liberty to file a fresh suit, though withdrawal was granted overlooking the fact that the application is a conditional one seeking permission to file a fresh one and to allow withdrawal of the pending suit.

3. The mandate under Rule 1 of Order XXIII C.P.C. is resting on the free volition of the plaintiff/s, who have instituted the suit, but subject to the restriction imposed under sub-rule(5), which says that when there are several plaintiffs, the court cannot permit withdrawal of suit or any part of claim unless consented to by all the plaintiffs. Sub-rule(4) of Rule 1 of Order XXIII C.P.C. precludes the party (plaintiff) from instituting a fresh suit in respect of same subject matter or any part of claim, which was allowed to be withdrawn without reserving the liberty to a fresh one. Necessarily, the restriction imposed under sub-rule (4) of Rule 1 of Order XXIII C.P.C. would preclude the plaintiff from bringing up another suit on the same subject and cause of action, unless leave was granted in accordance with sub-rule (3) of Rule 1 of Order XXIII C.P.C.. Hence, an application submitted seeking to withdraw the suit with liberty to file a fresh one cannot be allowed by denying the liberty to a fresh one. It can only be either dismissed or allowed in toto and not in part, otherwise it would destruct the very right of party to proceed with the suit. A conditional application submitted seeking leave under sub-rule(3) of Rule 1 of Order XXIII C.P.C. is an exception to the general principle and it cannot be allowed or dismissed in part, especially when it is within the realm of plaintiff to decide as to whether he should go with the suit or not in the event of non-grant of liberty to file a fresh one. Necessarily, unless it was consented to by the plaintiff, no such order in part can be granted while allowing withdrawal of suit without the grant of leave to a fresh one. A conjoint reading of sub-rule (3) and (4) would make it clear that the plaintiff can seek withdrawal of the suit either in whole or in part with liberty to file a fresh one. When the court found that no such liberty can be granted, it is not permissible to allow withdrawal without such liberty, unless consented to by the plaintiff in writing after recording the non- grant of liberty. The order passed by the trial court cannot be sustained in view of the provisions contained in Order XXIII Rule 1 C.P.C., hence will stand set aside by restoring the suit on file. There will be a direction to the trial court to expedite the disposal of the suit within a period of three months from the next posting date. All issues are left open for consideration.