The withdrawal and compromise of a civil suit is provided by Order 23 of the
Code of Civil Procedure, 1908. There are two types of withdrawal provide by
it. Those are:
- Absolute withdrawal: In this form of withdrawal, the leave of the Court
is not needed; and
- Qualified withdrawal: In this the leave of the Court is needed.
1. Withdrawal without the leave of the court
After the institution of a suit, the Plaintiff may at any point of time withdraw
his claim or suit against any one or all the defendants without the need of
taking a leave from the court. This is provide by Rule 1 (1) of Order 23 of the
Code of Civil Procedure, 1908. This right to withdraw a suit against one or
all the defendants is an Absolute right and not a Qualified Right. If the
plaintiff does not want to proceed with its suit, the Court cannot compel the
Plaintiff to continue.
This is based upon the principle of Invito beneficium
non datur it means that the law cannot confer a benefit to a man which he does
not desire. 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. 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. The
formal defect may include mis – joinder of parties, not providing proper
statutory notice, non – payment of proper court fees, etc. 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. The error should not cause any material defect.
The term sufficient grounds
should not be construed same as the term
. 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.
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
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
Adjustment or Compromise of Suit
Even though a suit has been instituted, the parties are free to settle in a
compromise. Rule 3 of Order 23 of the Code of Civil Procedure, 1908 states
that wherever the parties to a suit agrees and comes to a compromise, then the
Court should record such an agreement and also pass a decree for the
same. However for a compromise the following conditions must be met. The
conditions are as follows:
- An agreement between the parties or a compromise must be there between
- The compromise must be in written and signed by the parties.
- The agreement must be lawful.
- The agreement must be recorded by the concerned court; &
- A consent decree must be passed.
If after the passing of the consent decree by the concerned court, a dispute
regarding the genuineness of the compromise comes into question, then the court
which had recorded the compromise and passed the consent decree would have the
jurisdiction to hear the matter. The parties may file an appeal against the
decree. However no fresh suit can be filed concerning the same
matter. The Court should see that the compromise in which the parties had
agreed to is lawful and in accordance to the Indian Contract Act, 1872.
Rules 6 and 7 of Order 32 of the Code of Civil Procedure, 1908 tries to
safeguard the rights of minors by not allowing any best friend or guardian of
the minor to come to a compromise without taking the leave of the Court.
The pleaders or the advocate appearing behalf of the parties has an implied
authority where if the advocate finds that by coming to a compromise, their
parties would be benefitted, then the advocates need not obtain permission to
come in a compromise.
When the parties comes to a compromise and the Court also passes a decree for
the same, then the decree is not treated to be a decision of the Court. The
Court just provides a seal to the agreement in which both the parties have
entered. However the Court looks into whether the agreement is legal and has
been abided by the Indian Contract Act, 1872. So a compromise agreement is not
treated as res judicata. However many times a compromise agreement has also
been treated as res judicata.
The execution of a consent decree is same as the execution of an ordinary
decree. Before the Amendment Act of 1976, a consent decree was not used to be
passed however after the amendment, consent decree is passed by the concerned
court. The passing of the consent decree does not depend upon whether the
subject matter of the compromise is the similar to the suit.
Written by: Abhik Saha,
- Code of Civil Procedure, 1908, Order 23
- Code of Civil Procedure, 1908, Order 23, Rule 1(1)
- Bijayananda Patnaik v. Satrughna Sabu, AIR 1963 SC 1566
- Sarguja Transport Services v. STAT, AIR 1987 SC 88
- Ramrao Bhagwantrao v. Bapu Appanna, AIR 1940 Bom 121
- Certificate Officer v. Kasturi Chand, AIR 1970 Ori 239
- Ramrao Bhagwantrao v. Babu Appanna, AIR 1940 Bom 121
- Beniram v. Gaind, AIR 1982 SC 789
- Code of Civil Procedure, 1908, Order 23, Rule 2
- Moti Lal Banker v. Maharaj Kumar Mahmood Hasan Khan, AIR 1968 SC 1087
- Gurpreet Singh v. Chatur Bhuj, AIR 1998 SC 400
- Y. Sleebachan v. State of T.N, (2015) 5 SCC 747
- Horil v. Keshav, AIR 2012 SC 1262
- Code of Civil Procedure, 1908, Order 32, Rules 6 and 7
- Pulavarthi Venkata v. Valluri Jagannada, AIR 1967 SC 591
- Sailendra Narayan Bhanja Deo v. State of Orissa, AIR 1956 SC 346
- S.G. Thimmappa v. T. Anantha, AIR 1986 Kant 1
Student of Symbiosis Law School, Pune, 2nd
Year, B.B.A LL.B (Hons)
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