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IN THE HIGH COURT OF MADRAS
Curgenven, J.
Marudachala Nadar
Versus
Chinna Muthu Nadar and Anr.
Decided On : 02.09.1931
Order 23, Rule 1, Sub-rule 2 - Permission to Withdraw Suit - The court held that an application to withdraw a suit with liberty to institute a fresh suit must be treated as an indivisible whole, and if the party is not allowed liberty to institute a fresh suit, the pending suit should not be dismissed. The court set aside the lower court's order and directed a rehearing and disposal of the application.
Fact of the Case:
The petitioner applied for permission to withdraw from his suit with liberty to institute a fresh suit in respect of the same subject-matter. The District Munsif refused to grant such liberty but allowed the withdrawal of the suit.
Finding of the Court:
The court held that the application to withdraw the suit with liberty to institute a fresh suit should be treated as an indivisible whole. The lower court's decision was set aside, and a rehearing and disposal of the application was directed.
Issues: Permission to withdraw suit with liberty to institute a fresh suit
Ratio Decidendi: An application to withdraw a suit with liberty to institute a fresh suit must be treated as an indivisible whole. If the party is not allowed liberty to institute a fresh suit, the pending suit should not be dismissed.
Final Decision: The court allowed the petition, set aside the District Munsif's order, and directed a rehearing and disposal of the application. Each party will bear their own costs.
Curgenven, J.
1. The petitioner as plaintiff applied Under Order 23, Rule 1, Sub-rule 2, Criminal P. C, for permission to withdraw from his suit with liberty to institute a fresh suit in respect of the same subject-matter. The learned District Munsif, while refusing to grant such liberty, has thought that it was open to him to accept the former portion of the application and to allow the withdrawal of the suit. I think there is no doubt that an application of this kind must be treated as an indivisible whole and if a party is not allowed liberty to institute a fresh suit his pending suit should not be dismissed, but the application should be refused altogether and the suit should be retained upon the file. This is the view taken in Bhagwat Pershad v. Lachmi Pershad [1911] 10 I.C 346, and Mahant Biharidasji v. Parshotamdas [1908]32Bom345, and appears to me to be clearly reasonable. I must therefore allow the petition, set aside the District Munsifs order and direct the District Munsif to rehear and dispose of the application. As the respondent has not contested the petition before me each party will bear his own costs.
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