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Bare acts > Code of Civil Procedure, 1908 > Order 23 Rule 1
 
   


 

1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suitTh2jintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned Without the leave of the court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the court is satisfied,—

a) that a suit must fail by reason of some formal defect, or

(b) that 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, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.

(4) Where the plaintiff,—

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule
(3),

he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

HIGH COURT AMENDMENTS

Karnataka.- In Rule 1, add the following as sub-rule (5):

“(5) Where the plaintiff in a suit instituted or conducted under the provisions of Rule 8 of Order 1 of this Code or all plaintiffs therein if there are more plaintiffs than one, apply for permission to withdraw the suit, notice of such application shall be given in the manner prescribed by sub-rule (3) of Rule 8 or Order 1 of this Code for issue of notice of institution of the suit, and the cost of such notice shall be borne by the plaintiff or the plaintiffs, as the case maybe. If interest as that of the plaintiffs applies for permission to be transposed as plaintiff to conduct the suit further, he shall be permitted to do so and the plaintiff’s application dismissed.” (30.3.1967).

Orissa.- Insert in Rule 1 after the words “after the institution of suit” and before the word “plaintiff” the following words: “but not after the passing of the preliminary decree in the suit”. (7.5.1954).

 

 

 

 

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