Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Sanjay Dhar
Manzoor Ahmad Wani – Appellant
Versus
Ayaz Ahmad Raina – Respondent
JUDGMENT :
Sanjay Dhar, J.
1. The petitioner, through the medium of present petition, has challenged order dated 22.12.2023 passed by the learned Sub Judge, Vailoo (hereinafter referred to as “the trial court”), whereby application of respondent No.1 seeking withdrawal of the suit with permission to file fresh suit on the same cause of action in terms of Order 23 Rule 1 CPC, has been allowed. Challenge has also been thrown to subsequent suit filed by respondent No.1 against the petitioner and proforma respondent, which is stated to be pending before the trial court.
2. It appears that respondent No.1 (hereinafter referred to as “the plaintiff” filed a suit for permanent prohibitory injunction against the petitioner (hereinafter referred to as “the defendant”) before the trial court for restraining him from making any interference with his peaceful possession of a patch of land comprised in Survey No.3063/1725 situated at Vailoo. It was pleaded by the plaintiff that in the year 2010, the defendant had provided him the suit land which is adjacent to the shops that have been taken on rent by the plaintiff. The suit land was provided to the plaintiff for the purpose of construction of ser
Withdrawal of a suit under Order 23 Rule 1 CPC requires either a formal defect or sufficient grounds for a fresh suit.
The court ruled that plaintiffs can withdraw a suit with permission to file a fresh suit if sufficient grounds for withdrawal exist, overriding trial court's error in denying such permission.
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.
Court has discretion to permit withdrawal of a suit under CPC, but must ensure sufficient grounds exist; mere counsel error does not qualify if it alters the suit's essence.
Court must ensure sufficient grounds exist for withdrawal of a suit before permitting re-filing under Order XXIII Rule 1(3) CPC, safeguarding the rights of defendants and judicial efficiency.
A trial court must satisfy specific conditions under Order XXIII Rule 1(3) CPC before allowing a plaintiff to withdraw a suit and file a fresh one.
Permission to withdraw a suit with liberty to file a fresh suit requires sufficient grounds or a formal defect; mere change in circumstances does not suffice.
Court must record satisfaction regarding formal defects or sufficient grounds for allowing withdrawal of a suit as stated under Order XXIII Rule 1 CPC.
A court can only grant permission to withdraw a suit with leave to file a fresh suit if it is satisfied that the suit must fail by reason of some formal defect or that there are sufficient grounds fo....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
