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SYNOPSIS –

 Interlocutory Application at the stage where a case is posted for judgment

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 Application of ‘Res judicata’ in interlocutory applications
 WITHDRAWAL AND COMPROMISE OF SUITS
 Withdrawal without leave of court:
 Withdrawal with leave of court:
 Effect of leave –
 Suit by minor -
 Withdrawal by one of the plaintiffs -
 Limitation-
 Applicability to other proceedings
 Appeal
 Revision

Interlocutory Application at the stage where a case is posted for judgment -

In Laxminarayan Enterprises vs Laxminarayan Textile the learned single judge of

Karnataka High court allowed the applications under Sub-Rule (4) of Order XVIII and Order
IX Rule 6 C.P.C and observed that the Court may for the reasons to be recorded, direct or
permit any party to examine any witness at any stage.

But after the CPC (Amendment) Act, 1999, Sec 17-A of order XVIII was omitted which
allowed the production of evidence at any stage. The decision rendered by the division bench
of the Karnataka High court in Rabiya Bi Kassim M Vs. The Country-Wide Consumer
Financial Service Ltd has settled the position with respect to the production of evidence at
any stage of the proceedings. Once the matter has been finally heard and posted for judgment,
as held by the Supreme Court in Arjun Singh vs Mohindra Kumar nothing is required to be
done by the Court except to pronounce the judgment, and therefore the decision in
Laxminarayan enterprises’ has become a nullity.

Application of ‘Res judicata’ in interlocutory applications -

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As an interlocutory application does not encroach upon the merits of the controversy between
parties an order pursuant to such applications cannot be regarded as a matter affecting the
trial of the suit.

An interlocutory order in like of an issue of injunction, or appointment of a receiver, or an

order of attachment before judgment cannot be viewed as an issue affecting the trial of the
suit. Therefore where the question arose that whether adding a defendant to suit by amending
the pleadings was a matter affecting the trial of the suit, the Hon’ble Rajasthan High Court
stated that “Such an order could not be taken to be a step in the trial of the suit. Whether a
party should or should not be impleaded did not encroach on merits of the controversy
between parties. It is a matter of a formal nature and could not in any way determine their
respective rights”

Until and unless the issue is not decided on merits, the plea of principles of res judicata has
no application, as per the judgment reported in Erach Boman Khavar vs Tukaram Sridhar
Bhat & Ors, wherein the Hon’ble Supreme Court held as follows:

“It is clear as crystal that to attract the doctrine of res judicata it must be manifest that there
has been a conscious adjudication of an issue. A plea of res judicata cannot be taken the aid
of unless there is an expression of an opinion on the merits. It is well settled in law that
principle of res judicata is applicable between the two stages of the same litigation but the
question or issue involved must have been decided at an earlier stage of the same litigation.”

An order staying the suit under Section 10, C.P.C. does not prevent the Court from making
interlocutory orders such as orders for a Receiver or an injunction or an order for attachment
before judgment.

As the interlocutory orders do not decide any matter in issue arising in the suit nor do they
put an end to the litigation and do not decide the legal rights of the parties to the litigation, the
principle of res judicata does not apply to the findings on which these orders are based. If a
similar application is made for similar relief on the basis of same facts after the earlier
application has been disposed of, the court would be justified in rejecting the application as
an abuse of process of the court. But when there are changed circumstances the court is
perfectly justified in entertaining a second application.
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Interlocutory orders -

Interlocutory orders are passed by the courts to prevent irreparable harm from occurring to a
person or property during the pendency of a lawsuit or proceeding.

Rules 6 to 10 of Order 39 mention certain interlocutory orders, which include the court’s
power to order the interim sale of movable property, to order the detention, preservation or
inspection of any property which is the subject-matter of such suit. Similarly, when the land
in the suit is liable to Government revenue or is tenure liable to the sale and the party in
possession neglects to pay the revenue or rent, the court may order any other party to the suit
in case of sale of the land to be put in immediate possession of the property.

MODULE XV

WITHDRAWAL AND COMPROMISE OF SUITS

ORDER 23 deals with withdrawal and compromise of suits. It provides for two types of
withdrawals:

(i) Absolute withdrawal, i.e. withdrawal without the leave of the court; and (if) Qualified
withdrawal, i.e. withdrawal with the leave of the court. It declares the effect of withdrawals.
The Order also provides for compromise of suits and effect thereof.

WITHDRAWAL OF SUIT:

ORDER 23 RULES 1 & 2 -

(a) Withdrawal without leave of court:

Rule 1(1), (4) at any time after the institution of a suit, the plaintiff may abandon his suit or
abandon a part of his claim against all or any of the defendants without the leave of the court.
This right is absolute and unqualified and the court cannot refuse permission to withdraw a
suit and compel the plaintiff to proceed with it 1, unless any vested right comes into existence
before such prayer is made2. However, in case of such abandonment or withdrawal of a suit
or part of a claim without the leave of the court, the plaintiff will be precluded from

1
Bijayananda Patnaik v. Satrughna Sabu, AIR 1963 SC 1566
2
R. Ramamurthi v. V. Rajeswara, (1972) 2 SCC 721: AIR 1973 SC 643.
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instituting a fresh suit in respect of the same cause of action 3. The principle underlying Order
23 Rule 1 is that once a plaintiff invokes the jurisdiction of the court and institutes a suit, he
cannot be permitted to institute a fresh suit in respect of the same subject matter again if he
abandons such suit without the permission of the court to file fresh suit. "The law confers,
upon a man no rights or benefits which he does not desire" (Invito beneficium non daturf.
The plaintiff also becomes liable for such costs as the court may award to the defendant 4.
Rule 1A of Order 23 as added by the Amendment Act of 1976 provides for the circumstances
under which the defendant may be allowed to be transposed as a plaintiff where the suit is
withdrawn by the plaintiff5.

(b) Withdrawal with leave of court:

Rule 1(3) (i) Grounds –

Where the court is satisfied that a suit must fail by reason of some formal defect, or there are
sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a
suit or part of a claim, it may grant permission to withdraw such suit or such part of the claim
with liberty to file a fresh suit in respect of the subject matter of such suit or such part of the
claim on such terms as it thinks fit.

Such permission may be granted by the court on the following grounds:

(1) Formal defect —

Though the expression "formal defect" has not been defined in the Code, it connotes some
defect of form or procedure not affecting the merits of the case 6; such as want of statutory
notice under Section 80 of the Code, misjoinder of parties or of causes of action, non -
payment of proper court fee or stamp fee, failure to disclose cause of action, mistake in not
seeking proper relief, improper or erroneous valuation of the subject matter of the suit,
absence of territorial jurisdiction of the court, defect in prayer clause, etc 7. But a defect
affecting the merits of the case, or a defect which goes to the root of the plaintiff's case
cannot be said to be a formal defect 8; e.g. non joinder of a necessary party, omission to

3
: AIR 1999 SC 509
4
Konkan Trading Co. v. Suresh Govind, (1986) 2 SCC 424: AIR 1986 SC 1009.
5
R. Rathinavel Chettiar v. Sivaraman, (1999) 4 SCC 89.
6
Ramrao Bhagwantrao v. Babu Appanna, AIR 1940 Bom 121 (FB)
7
Beniram v. Gaind, (1981) 4 SCC 209: AIR 1982 SC 789
8
Dwarka Agarwalla v. Sashi Babha, (1966) 32 Cut LT 864; Harikrishna v. State of Orissa, (1976) 42 Cut LT
339; Raja Srinath Roy v. Dinabandhu Sen, AIR 1914 PC 48
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substitute heirs, omission to include all the causes of action in the plaint, non registration of a
partnership firm, bar of limitation, deliberate undervaluation of the subject matter of the suit,
addition of a new factual plea, failure to bring legal representatives on record, non-
examination of material witnesses, insufficiency of evidence, filing of representative suit
without following procedure prescribed by Order 1 Rule 8 etc9.

(2) Sufficient grounds —

The expression "sufficient grounds" need not generally be construed ejusdem generis (of the
same kind or nature) with formal defect10. For instance, where the suit was premature, or it
had become infructuous, or where the plaintiff felt that the defendant was absent and even if
the decree was passed, it could not be executed, or where two suits were filed and due to
mistake both were withdrawn, or there was omission to file Power of Attorney, it was held to
be a sufficient ground. Wide and liberal meaning should be given to the expression
"sufficient grounds" by exercising power in the interest of justice (ex debito justitiae)11.

But, the power cannot be exercised where the plaintiff was not ready to conduct the suit; or
where no notice was served to the defendant due to death, etc.

Effect of leave –

It is in the discretion of the court to grant such permission and it can be granted by the court
either on an application of the plaintiff or even suo motu. Such permission may be granted on
such terms as to costs, etc. as the court thinks fit. The granting of permission to withdraw a
suit with liberty to file a fresh suit removes the bar of res judicata. It restores the plaintiff to
the position which he would have occupied had he brought no suit at all.

Suit by minor -

Rule 1(2) By the Amendment Act of 1976, a specific provision has been made that where the
plaintiff is a minor, neither the suit nor any part of the claim can be abandoned without the
leave of the court. Subrule (2) of Rule 1 enacts that an application for leave under the proviso
to subrule (1) of Rule 1 must be accompanied by an affidavit of the next friend and also, if
the minor of such person is represented by a pleader, by a certificate of the pleader to the
effect that the proposed abandonment is, in his opinion, for the minor's benefit.
9
Tarachand v. Gaibihaji Ahmed, AIR 1956 Bom 632
10
Eleavarthi Nadipatha v. Eleavarthi Pedda Venkataraju, AIR 1966 Mad 346
11
K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458: AIR 2000 SC 2132.
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Withdrawal by one of the plaintiffs -

Rule 1(5) Where there are two or more plaintiffs in a suit, the suit or part of the claim cannot
be abandoned or withdrawn without the consent of all the plaintiffs. One of such plaintiffs,
however, may abandon or withdraw from the suit to the extent of his own interest in it.

Limitation-

Rule 2 A plaintiff withdrawing a suit with liberty to file a fresh suit is bound by the law of
limitation in the same manner as if the first suit has not been filed at all.

Applicability to other proceedings -

(i) Appeals

Appeal is a continuation of suit. The provisions of this Order therefore, apply to withdrawal
of appeals12. The appellant has a right to withdraw his appeal unconditionally and if he makes
such an application, the court must grant it, subject to costs, and has no power to say that it
will not permit the withdrawal and will go on with the hearing of the appeal 13. Similarly, in
appropriate cases, an appellate court can grant permission to withdraw a suit with liberty to
file a fresh suit. Such power, however, has to be exercised sparingly and cautiously.

(ii) Revisions

The revisional jurisdiction of a High Court is a part of appellate jurisdiction of the High
Court. Basically and fundamentally it is the appellate jurisdiction of the High Court which is
being invoked and exercised in a wider and larger sense 14. So far as the provisions of Order
23 of the Code are concerned, it has been held in some cases that they apply to withdrawal
proceedings24 but a contrary view has also been taken.

(iii) Representative suits

Where the plaintiff sues in a representative character, he cannot abandon or withdraw the suit
or a part of the claim. He may, however, get out of the suit, but that does not put an end to the
litigation where other persons are interested in it and have a right to come in and continue the
litigation15.
12
Ammini Kutty v. George Abraham, AIR 1987 Ker 246.
13
Bijayananda Patnaik v. Satrughna Sabu, AIR 1963 SC 1566
14
Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74.
15
Sheela Barse v. Union of India, (1988) 4 SCC 226:
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(iv) Writ petitions

The general principles for withdrawal of suits also apply to petitions under Article 226 or
Article 32 of the Constitution. Ordinarily, therefore, a High Court or the Supreme Court
would not refuse the prayer of the petitioner or his advocate to allow him to withdraw the
petition, if such withdrawal is unconditional 16. But he cannot thereafter institute a fresh
petition on the same cause of action. But if such writ petition is withdrawn on some technical
defect or logistic problem or availability of alternative remedy or such formal objection, fresh
petition will not be barred17.

Appeal

An order granting or refusing permission to withdraw the suit with permission to file fresh
suit on the same cause of action is neither a "decree" nor an appealable order. Hence, no
appeal lies against such order.

Revision

An order granting or refusing permission to withdraw the suit with permission to file fresh
suit on the same cause of action can be said to be a "case decided" under Section 115 of the
Code. Such order is, therefore, revisable.

16
Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153: (1965) 1 SCR 547.
17
Haryana State Coop. Land Development Bank v. Neelam, (2005) 5 SCC 91: AIR 2005 SC 1843.