06/03/2026
The law governing the withdrawal of suits, as laid out in Rule 1 of Order XXIII, CPC, encompasses two fundamental provisions:
(a) a plaintiff has the inherent right to abandon a suit or any portion of his claim without seeking prior permission from the Court. However, this right comes with the caveat that once a suit or a part of it is abandoned, the plaintiff cannot initiate a fresh suit based on the same cause of action. It is crucial to note that the plaintiff cannot withdraw a suit while simultaneously reserving the right to file a fresh suit on the same grounds. Furthermore, the defendant cannot compel the plaintiff to continue with the proceedings.
(b) In specific situations outlined in Sub-rule (2), the Court may grant the plaintiff permission to withdraw from a suit, thereby allowing the opportunity to initiate a fresh suit(naeem) on the same cause of action. Such permission, when granted by the Court, serves to safeguard the plaintiff from the restrictive effects of Order II Rule 2 and Section 11 of the CPC.
The stipulations found in Order XXIII Rule 1, CPC, represent a noteworthy exception to the established common law principle of non-suit. Consequently, an application made by a plaintiff under Sub-rule (2) cannot be equated with the unilateral right granted under Sub-rule (1). The latter offers a straightforward path for withdrawal. At the same time, the former necessitates a formal request for a special concession from the Court, contingent upon demonstrating compelling circumstances that merit such a concession. While the grant of leave as envisaged in Sub-rule (2) lies within the discretion of the Court, this discretion must be exercised judiciously and with careful consideration. The legislative intent governing this discretion is clearly articulated in Sub-rule (2), which (naeem)outlines two distinct scenarios: one in which the Court is convinced that a suit would inevitably fail due to some procedural defect, and the other where the Court recognizes sufficient grounds that warrant the plaintiff’s ability to initiate a fresh suit concerning either the entirety of the subject matter or a portion of a claim. Clause (b) of Sub-rule (2) imposes a clear obligation on the Court to ascertain the adequacy of the grounds presented for permitting the plaintiff to commence a new suit regarding the same claim or part of a claim centred on the identical cause of action. In fulfilling this duty, the Court is mandated by the Code to evaluate all pertinent factors, including the implications of allowing a party to re-engage in litigation based on the same underlying issues. This scrutiny becomes increasingly vital when the application is filed at the appellate or second appellate stage. If leave is granted in such circumstances, it could empower the unsuccessful plaintiff to evade any unfavourable decrees previously rendered against them, essentially allowing a fresh examination of the dispute from a clean slate. Furthermore, this process might disadvantage the contesting defendant, who could lose the benefits of adjudications by the courts below. Additionally, permitting the withdrawal of a suit with the option to (naeem)file anew could annul rights that have been vested in the defendant or even third parties. Thus, appellate or second appellate courts must approach these matters with a discerning mindset, ensuring stringent adherence to the stipulations outlined in Order XXIII Rule 1(2) of the CPC when exercising their discretionary powers to authorise the withdrawal of a suit with permission to file a new suit on the same cause of action. An equally significant consideration is the potential for wasteful expenditure of public time through the withdrawal of suits at the appellate stage, particularly in light of the pressing backlog of cases in lower courts and the consequential delays in their resolution. The efficient functioning of the judicial system, especially during periods of record case accumulation, underscores the need for careful deliberation in such matters.
The implications of Order XXIII, Rule 1 CPC, as detailed above, have led us to conclude that when a suit is withdrawn with permission to initiate a fresh suit, that permission effectively leaves the parties in the same legal position as if the original suit had never been filed.
This is important because the principle of law is that
It is a well-established principle of law that, under Order VI, Rule 17 of the CPC, amendments to the original plaint that alter the character of the claim are not permitted, even if the nature of the suit remains the same. Similarly, amendments to a written statement that change the entire complexion of the defence are also not allowed.
Civil Appeal No.3347 of 2022
Mst. Sakina Bi, etc vs Barkat Hussain, etc.
06-03-2026
