1986 Supreme(MP) 330

IN THE HIGH COURT OF MADHYA PRADESH
G.G. SOHANI, J.
Rajesh Trading Co. - Applicant
Vs.
State Bank of India - Respondents
C.R. No. 606 of 1984 (I)
Decided On : 26-06-1986

Headnote:Civil Procedure Code, 1908 – O. 23, R. 1 (4) – plaintiff abandoning suit – he is liable to pay cost of the defendant.

        Short Note

       1. Opponent No. 1 instituted a suit against the applicants and opponent No. 2 for the recovery of a sum of Rs. 1,57,101.74. During the pendency of the proceedings, the plaintiff submitted an application under Order 23, Rule 1 C.P.C. and Section 151 C.P.C. stating that for the reasons stated in the application, the plaintiff did not want to pursue the suit. The trial Court, by its impugned order, permitted the plaintiff to withdraw the suit and also directed that parties should bear their own costs of the suit. Aggrieved by the direction of the trial Court with regard to costs, the defendants have filed this revision petition.

       Held : When a plaintiff abandons any suit, the question of granting permission to the plaintiff to withdraw the suit does not arise. The question of permission in the case of abandonment of claim arises if the plaintiff is a minor. In the instant case, as the plaintiff was abandoning its claim against the defendants, the trial Court should have noticed that the matter was covered by the provisions of Order 23, Rule 1 (4) C.P.C. The plaintiff was therefore liable to pay costs to be awarded by the Court. The reason given by the Court for not awarding costs to the defendants was that the costs incurred by the plaintiff were much more than the costs incurred by the defendants. That can hardly be a reason for not awarding such costs as were incurred by the defendants. It was urged by the learned counsel for the plaintiff – opponent that the facts showing receipt of the disputed amount by the plaintiff were not brought to the notice of the plaintiff by the defendants at the earliest stage. It is, however, the duly of the plaintiff to verify his claim before he chooses to institute a suit in that behalf. If, after the institution of the suit, the plaintiff abandons his claim then normally the plaintiff should be made liable to pay costs of the contesting defendants. Consequently, the order passed by the trial Court in that behalf deserves to be modified.

       2. The revision petition is, therefore, allowed with costs. The order passed by the trial Court with regard to costs is modified and it is directed that the plaintiff shall bear its own costs and shall also pay the costs of contesting defendants No. 2, 4, 16 and 17 in the trial Court and in this Court. Revision allowed.