Jabeen Ihsan v. Noushima Basheer

  • Order

Code of Civil Procedure, 1908 – Order XXIII Rule 1 (3) – Withdraw from the suit with liberty to file fresh suit – No permission can be granted if the suit sought to be instituted is in respect of different subject matter – Sub-rule (3) is not intended to permit a plaintiff to withdraw one suit and to institute any suit as he likes.

As per Order XXIII Rule 1(3) of Civil Procedure Code (for short “the Code”), the plaintiff can seek permission to withdraw from the suit with liberty to file fresh suit in respect of the same subject matter of the suit, on any of the two grounds: (1) the suit would fail by reason of some formal defect (2) there are sufficient ground for allowing the plaintiff to institute a fresh suit in respect of the same subject matter. The court can allow the application under Order XXIII Rule 1(3) only on satisfaction of either of these conditions. The word “formal defect” appearing in Rule 1 sub-clause (3) of Order XXIII of the Code means the defect which does not affect the merits of the case whether that defect is fatal to the suit or not. The expression “sufficient grounds” occurring in clause (b) of Rule 1(3) of Order XXIII of the Code is not to be read ejusdem generis with the expression “formal defect” occurring in clause (a). There is no requirement that “sufficient ground” pleaded by the plaintiff for seeking permission to withdraw the suit with liberty to institute fresh suit shall be analogous to a formal defect. It is settled that the subject matter of the suit which is sought to be instituted afresh shall be the same as that of the suit which is sought to be withdrawn. The subject matter mentioned in clause (3) of Rule (1) includes the cause of action as well. Thus, no permission can be granted if the suit sought to be instituted is in respect of different subject matter. Sub-rule (3) is not intended to permit a plaintiff to withdraw one suit and to institute any suit as he likes.  [Paras 5 & 6]

Family Courts Act, 1984 – Section 7 – Matrimonial Proceedings – Petition for restitution of conjugal rights, dissolution of marriage, Recovery of gold ornaments and money – Application to withdraw OP and to file a fresh OP – Original Petition was one for restitution of conjugal rights – after withdrawing the said petition, the petitioner wants to institute an original petition with a prayer for nullity of marriage – Both the claims are totally opposite and the subject matter also is not the same – there is no case for the petitioner that there is any formal defect, marriage was null and void and respondent did not give consent for the marriage – Court below on perusing the evidence adduced by PW1 found that she did not depose that her consent was not obtained for the marriage – No jurisdictional error committed by the court below in passing the impugned orders.

Case Law Reference

  1. Sabu Issac v. Antony Chacko, 2020 KHC 682
  2. K.S. Bhoopathy v. Kokila, AIR 2000 SC 2132

Citations : 2021 (4) KCC 1 : 2021 (4) KHC 78 : 2021 (4) KLT 598