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Order 23 cpc

(Querist) 07 November 2011 This query is : Resolved 
XXIII - WITHDRAWAL AND ADJUSTMENT OF SUITS

1. Withdrawal of suit or abandonment of part of claim?

At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons.

Where the Court is satisfied?

that a suit must fail by reason of some formal defect, or
that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim.

Where the plaintiff?

abandons any suit or part of claim under sub-rule (1), or
withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.

Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

1A. When transposition of defendants as plaintiffs may be permitted? Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.
PLS EXPLAIN ME WHAT IS MEANT BY DEFECT OF FORMAL CHARACTER AND SUFFICIENT CAUSE SOTHAT PERMISSION FOR FRESH SUIT MAY BE GRNTD.
AS GIVEN IN RR IA I WANT TO KNOW WHAT IS THE ROLE OF PROFORMA DEFENDENT.
Devajyoti Barman (Expert) 07 November 2011
This is a typical bookish question unconnected with practical problem which we discourage discussing here.

You better post this in some other place like 'Forum'.
ajay sethi (Expert) 07 November 2011
formal defct would be for instance wherein no leave of court has been obtained
for instance when suit is bad for misjoinder or non joinder of parties in such a case court may grant permission to withdraw with liberty to file fresh suit .

sufficent cause would mean sufficent reasons . the court is satisfied that for reasons mentioned fresh suit should be filed court may permit withdrawal .

Rajeev Kumar (Expert) 07 November 2011
I agree with Devajyothi and ajay.
Nadeem Qureshi (Expert) 11 November 2011
i am also agree with Mr. Burman


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