Deepak 02 June 2023

Query on abandonment of suit

Hi,

1) If a person abandons a partition suit at the stage of evidence , will he be precluded from filing a similar suit as under O.23. Rule.3.

2) Considering the fact that a partition right is a continuing one and does not preclude a person from filing a partition suit once more , does the provision under O.23 Rule 3 still mandate the person to take the leave of the court before filing a similar suit.

Thanks

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4 Replies

T. Kalaiselvan, Advocate (Advocate) 02 June 2023

It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in subrule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

However the plaintiff can file a fresh suit with the leave of the court.

Deepak 02 June 2023

Thanks sir. But can a person file a similar suit without seeking the leave of the court as it is a continuing right?

N.K.Assumi (Advocate) 02 June 2023

The answer is NO. Without the permission of the court the plaintiff is precluded from instituting any fresh suit after withdrawal.

Dr. J C Vashista (Advocate ) 03 June 2023

Order 23 Rule 3 of the Code of Civil Procedure, 1908 states that when the parties have made an arrangement to settle the dispute entirely or in part the court if it is satisfied shall pass the decree to such effect and record the same. The agreement should be legal, in writing and signed by the parties.

Prima facie abdonment of relief is covered under Order II Rule 2 CPC, 1908 which provides:

"(2) Relinquishment of part of claim-

Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished."

Please recheck the facts vis-a-vis query