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Abatment and Withdrawal of Suits
Abatment and Withdrawal of Suits
Abatment and Withdrawal of Suits
This is based upon the principle of Invitobeneficium non datur it means that the law cannot
confer a benefit to a man which he does not desire.[4] It would go against the wishes of the
Plaintiff and would eventually lead to wastage of the Court’s time. However if for once the
Plaintiff withdraws its case then he or she would never be able to file a new suit in respect of the
same cause of action against the same party or parties.[5] Also while withdrawing the suit, if the
Court awards any cost to the defendant, then the Plaintiff would have to bear it.
2. Withdrawal with leave of court
Rule 1(3) of Order 23 of the Code of Civil Procedure, 1908 allows withdrawal of suit with the
leave of the court. If the court feels that the suit is having some formal defects and it must fails or
if the court gets sufficient grounds to allow the plaintiff to institute a new fresh suit for the whole
suit or any one subject matter of the suit.
The word, formal defect has not been defined under the Code but it connotes any procedural
defect which does not affect the merits of the case.[6] The formal defect may include mis –
joinder of parties, not providing proper statutory notice, non – payment of proper court fees,
etc.[7] Errors such as non – joinder of necessary parties, not including all the cause of actions,
non – examination of material witnesses, etc. does not fall under the category of formal defects
as they constitutes a material defect which affects the merits of the case.[8] The error should not
cause any material defect.
The term sufficient grounds should not be construed same as the term formal defect. If there is an
issue where the decree passed by the court cannot be executed because of no one’s fault, if
two suits had been filed for the same cause of action and due to a fault, both the suits were
withdrawn, omission to file the Power of Attorney, etc are some of the examples which falls
under the category of sufficient grounds.[9]
The Court also has the power to grant leave. The grant of leave is done when the parties ask for it
or if the court finds sufficient grounds the court may grant leave sue moto.
3. Suits by minor
If in any suit, the plaintiff is a minor, then, neither the suit, nor any part of the claim can be
withdrawn without the permission of the Court. This has been provided by the Amendment Act
of 1976. According to Sub Rule 2 of Rule 1 of Order 23 of the Code of Civil Procedure, 1908, if
the plaintiff asks for a leave from the Court where the plaintiff is a minor, then the application
must be attached with an affidavit of the next best friend of the minor. If a pleader is representing
the minor in the Court, then the pleader also must submit a certificate certifying that the need of
leave is for the benefit of the minor.[10]
4. Limitation
If the plaintiff withdraws his suit with his own free will, to file a fresh suit, then the plaintiff
needs to file the fresh suit within the limitation period. This is provided under Rule 2 of Order 23
of the Code of Civil Procedure, 1908.