The court cannot split the prayer for withdrawal of a suit and liberty to file a fresh suit; both must be allowed or rejected together.

ORDER :

(Nupur Bhati, J.)

Learned counsel for the petitioner submits that the petitioner/plaintiff had preferred a Civil Original Case No.118/2017 before the learned Civil Judge, Jalore, wherein, an application was filed by the petitioner-plaintiff seeking withdrawal of the suit with liberty to file fresh with new averments.

2. Learned counsel for the petitioner further submits that the learned trial Court vide order dated 12.09.2023 (Annexure-5), permitted the petitioner to withdraw the suit however, the liberty to file fresh suit was not granted to the petitioner.

3. Learned counsel places reliance upon the order dated 16.06.1988 passed by the Himachal Pradesh High Court in the case of Hans Raj Akrot v. State of Himachal Pradesh. The relevant portion is reproduced hereunder:-

"It is settled that where a plaintiff makes a prayer for withdrawal of the suit with liberty to file a fresh suit in respect of the subject matter of the suit, the court can permit the withdrawal of the suit coupled with the liberty to file a fresh suit. It cannot refuse that liberty to the plaintiff on its own. If the Court feels that, in the circumstances, brought before it, permission to withdraw the suit should not be granted, it can refuse the prayer by rejecting the application. It is not open to the Court to split up the prayer made by the plaintiff by allowing the withdrawal of the suit and refusing the liberty to institute a fresh suit in respect of the same subject matter."

4. Learned counsel for the petitioner further submits that the application filed by the plaintiff-petitioner has been partially allowed while ordering that the suit is dismissed as withdrawn, however, liberty to file a fresh suit was not given. He further submits that the learned trial Court has erred in allowing the application under Order 23, Rule 1 (3) of CPC partially as the petitioner has been rendered as remediless, and either the application ought to have been allowed or rejected. He further submits that the partially allowing of the application has resulted into irreparable loss to the petitioner-plaintiff.

5. This Court, finds that under the provisions of Order 23, Rule 1 (3) of CPC, a specific provision has been given under which a Court can allow withdrawal of suit and the same reads as under:-

"12. An Application to withdraw the Suit with liberty to file a fresh suit must either be allowed or refused in toto. It is not open to the Court to grant a prayer for withdrawal and refuse the leave. If liberty is refused, the Suit should not be dismissed, but must be retained in the file for Trial / continuation of Trial. If an application is made for withdrawal of the Suit with liberty to file a fresh suit, it is not open to the Court to grant only permission for withdrawal, without liberty to file a fresh suit. If the Court simply allows withdrawal but refuses liberty, the Court would be acting without jurisdiction in dividing the Petition into two parts. It is to be noted that the Application under Order 23, Rule 1 (3) of C.P.C is indivisible whole. The Trial Court was not right in separating the prayer for withdrawal and the leave to file a fresh suit. When the Court has declined to grant leave to file a fresh suit, the Trial Court ought to have dismissed the Application in toto."

6. The Hon'ble Apex Court In the case of Nathji and another v. Languria and another AIR 1925 Allahabad 272, it has been held that where in the case of an application to withdraw a suit in terms of Order 23, Rule 1 (2) CPC, the Court allows the suit to be withdrawn but refuses permission to bring a fresh suit, the Court's order is erroneous. It was held had if the trial Court saw no reason for allowing the withdrawal in terms of Order 23, Rule 1 (2), the trial Court should have refused the application seeking liberty to file a new suit and it should have proceeded with the suit on merits.

7. As per Order 23, Rule 1 (3) CPC, suit may only be withdrawn with permission to bring a fresh suit when t