K.S. BHOOPATHY AND ORS. versus KOKILAAND ORS.

Citation: [2000] 3 S.C.R. 1168 · Decided: 08-05-2000 · Supreme Court of India · Bench: AJAY PRAKASH MISRA · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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K.S. BHOOPATHY AND ORS. 
v. 
KOKILAAND ORS. 
MAY8, 2000 
[A.P. MISRA AND D.P. MOHAPATRA, JJ.] 
Code of Civil Procedure, 1908 : 
Order XXIII, Rule 1(3)-Withdrawal of suit-Suit for injunction.filed to 
restrain running of flour mill and use of a pathway-Trial Coun decreed suit 
in favour of respondent and gave them exclusive right of user over pathway-
First Appellate Cou11 quashed the exclusive right of user over pathway-
Respondents sought permission to withdraw suit in second appeal before High 
Cou11 in order to file fresh suit with additional prayer for declaration of title 
over pathway-High Court allowed the application-On appeal Held, there is 
distinction between withdrawal which is termed as "abandonment" and with-
drawal with permission of Court-Grant of leave is discretion of the Court 
which is to be exercised with caution and circumspection-Court should feel 
satisfied regarding grounds of granting permission, statutory mandate not 
complied by merely stating that such permission will not prejudice defendants-
Grant of leave at such stage would help unsuccessful plaintiff to avoid the 
decree against him and seek fresh adjudication on a clean slate-Permission 
to withdraw granted improperly, matter not-considered in the proper perspec-
tive as it was for the plaintiffs to frame their suit properly at the proper time. 
Order II Rule 2 and Section 11-Bar on framing of suit and Res Judicata-
Such bars avoided when liberty to withdraw suit is granted by Cou11 under 
Order XXIII Rule 1. 
The respondents filed suit for injunction against the appellants to 
restrain them from establishing and running a flour mill and using the 
pathway lying between their properties. Trial Court decreed suit in favour 
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of the respondents and gave them an exclusive right of user over the 
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pathway. First appellate court modified the decree and held that respond-
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ent did not have an exclusive right of user over the pathway. Respondents 
filed the second appeal before the High Court, but before its admission an 
application was made under Order XXIII Rule 1(3) CPC seeking permis-
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sion to withdraw the suit with leave to tile a fresh suit as no prayer for 
1168 
K.S. BHOOPATHY v. KOKILA 
1169 
.... ,, 
declaration of title over the pathway was made in the plaint. The applica-
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tion was allowed. Hence this appeal. 
Appellant contended that the High Court erred in entertaining the 
application for withdrawal of the suit before admission of the second 
appeal, that no substantial question of laws was formulated during the 
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second appeal; and that the application was entertained at a premature 
stage. 
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Respondent contended that the application was allowed after hear-
ing both parties; and that High Court had a wide discretion to grant 
permission for withdrawal of the suit, which is not liable to be interfered c 
under Article 136 of the Constitution. 
Allowing the appeal, the Court 
HELD : 1. Order XXIII Rule 1 CPC makes a distinction between 
absolute withdrawal which is termed as "abandonment" and withdrawal 
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with the permission of the Court. The law as to withdrawal of suits as 
enacted in Order XID Rule 1 may be generally stated in two parts : (a) a 
plaintiff can abandon a suit or abandon a part of his claim as a matter of 
right without the permission of the Court, in that case he will be precluded 
from suing again on the same cause of action. Neither the plaintiff can 
abandon a suit or a part of suit reserving to himself a right to bring a fresh 
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suit, nor can the defendant insist that the plaintiff must be compelled to 
proceed with the suit; and (b) a plaintiff may, in the circumstances men-
tioned in Rule 1 (3), be permitted by the Court to withdraw from a suit with 
liberty to sue afresh on the same cause of action. Such liberty being 
granted by the Court enables the plaintiff to avoid the bar in Order II Rule 
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2 and Section 11 CPC. (1174-E-H] 
2. The provision in Order XXID Rule 1 CPC is an exception to the 
common law principle of non suit. On principle an application by a plain-
tiff under Rule 1(3) cannot be treated on par with an application by him in 
exercise of the absolute liberty given to him under Rule 1(1). In the former 
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it is actually a prayer for concession from the Court after satisfying the 
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Court regarding existence of the circumstances justifying the grant of such 
concession. The grant of leave envisaged in Rule 1(3) is at the discretion of 
the Co

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