A plaintiff has an absolute right to withdraw/abandon their suit as a whole or in part, at any time after the institution of the suit, without seeking permission to file a fresh suit, as enshrined under Order 23 Rule 1 (4) CPC.

ORDER

1. The instant revision petition has been filed under Section 115 CPC by petitioners-plaintiffs, assailing the order dated 15.7.2022 passed by the Court of Civil Judge and Metropolitan Magistrate, South, Jaipur Metropolitan-I whereby their application dated 28.5.2022 filed under Order 23 Rule 1 CPC seeking withdrawal of civil suit for eviction, has been dismissed.

2. Heard counsel for both parties, perused the impugned order and record.

3. From perusal of record, it appears that one civil suit for eviction in respect of suit property bearing Municipal No.1403 sitauted in City Jaipur, Chowkdi Vishveshwarji, Tarachand Nayabki Gali, Jaipur was filed on the ground of bonafide and reasonable necessity. Respondent-defendant Rameshwar Prasad admitted his tenancy stating that the premise was taken on rent from one Pravin Kumar son of Late Rajendra Prasad and contested the suit. During pendency of suit, petitioners-plaintiffs jointly moved one application under Order 23 Rule 1 CPC supported with affidavit of all plaintiffs stating that plaintiff No.1/1 Mahendra Kumar Agarwal, plaintiff No.1/2 Ashok Kumar Agarwal, plaintiff No.2 Smt. Sushila Devi, Plaintiff No.3 Smt. Saroj Devi have transferred their rights in favour of plaintiff No.4 Santosh Devi and she is the sole owner/landlord of suit property. It was stated in the application that defendants have become tenant of plaintiff No.4 and keeping legal rights of plaintiff No.4 intact in respect of suit property, the suit may be allowed to be withdrawn. It may be noticed that no permission for filing a fresh suit was prayed for and plaintiffs sought to withdraw their present eviction suit.

4. Defendants filed reply to the application and denied transfer of rights of suit property in favour of plaintiff No.4 and stated that no details have been mentioned in the application in this respect. It was stated that plaintiffs No.1/1 and 1/2 have no share in the suit property. It was also contended that plaintiffs’ suit is not sustainable in the eye of law and special cost of Rs.55,000/- was claimed.

5. Learned trial Judge vide impugned order dated 15.7.2022 dismissed the application seeking withdrawal of plaint by petitioners-plaintiffs, hence, this revision petition is filed.

6. At the outset, it appears that learned trial Judge has not adverted to the provision of Order 23 Rule 1 CPC which envisages provision in respect of withdrawal of suit or abandonment of part of claim. Sub-Rule 1 of Rule 1 envisages that after institution of suit, plaintiff may abandon his suit whole or in part at any time and in case minor, abandonment is permissible with leave of the Court. Sub-Rule 2 speaks about application for leave, in case of abandonment by and on behalf of minor. Sub-Rule 3 speaks about granting permission for withdrawal of the suit wholly or partly with liberty to institute a fresh suit in respect of subject matter of suit. Sub-Rule 4 states that where plaintiff abandon or withdraws his suit, he shall be precluded from instituting any fresh suit in respect of such subject matter on the cause of action. Sub-Rule 5 deals with where there are more than one plaintiff. For ready reference, the relevant portion of provision which extracted 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 XXXII extended, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave.....

(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 plaint