Read Order: Gurdish Singh v. Sukhdeep Singh and Another

Monika Rahar

Chandigarh, April 12, 2022: The Bench of Justice Anil Kshetarpal of the Punjab and Haryana High Court has held that a suit, after its institution, can be permitted to be withdrawn in accordance with the Order XXIII Rule 1 CPC, however, if the plaintiff wants to withdraw the suit with liberty to file a fresh one on the same cause of action, he is required to establish that the suit suffers from a formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject matter.

Originally, in March 2021, the first respondent filed a suit for the grant of a decree of declaration to the effect that the Will dated March 5, 1991, produced by Gurdish Singh (the petitioner before High Court) was illegal, wrong and fabricated. Without any application, the Trial Court permitted him to withdraw the suit with liberty to file a fresh one on the basis of the 1991 Will. Thus, impugning this order allowing the withdrawal, the present petition was filed. 

It was the case of the counsel for the petitioner that the impugned order was passed without an application under Order 23 Rule 1 CPC as well as the Court failed to record a finding as to the technical defect in the previous plaint. He further contended that in fact a fresh suit was  permitted to be filed so as to enable the plaintiff to indulge in forum shopping.

From reading the impugned order, it became evident that the Court did not record any reason while permitting the plaintiff to withdraw the suit. Thus, against this backdrop the Court opined that a suit, after its institution, can be permitted to be withdrawn in accordance with the Order XXIII Rule 1 CPC. 

However, the Court added that if the plaintiff wants to withdraw the suit with liberty to file a fresh one on the same cause of action, he is required to establish that the suit suffers from a formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject matter.

Coming to the present case, the Court noted that the Trial Court, while passing the impugned order, did not examine the proviso of Order XXIII Rule 1 CPC. Thus, keeping in view the aforesaid facts, the present revision petition was allowed and the order, under challenge, was set aside. 

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