Introduction:
Before the withdrawal and adjustment of suits, we should know that what is suits. According to the definition mentioned in the dictionary, a Suit is a term that refers to a proceeding that is initiated by a person against another party in a court. Where the person who is the plaintiff is claiming the remedy with the help of any law which supports him. In the whole Civil Procedure Code, the term Suit is not defined.
When we analyze the whole code, we can find that Order 1 – 20 of the 1st Schedule mentions the procedure related to the suits. Order 23 of the Civil Procedure Code deals with the withdrawal and adjustment of suits. Under which suit can be withdrawn and when a suit can be compromised. But withdrawal is divided into two types • Absolute Withdrawal – Under Rule 1(1), this type of withdrawal means withdrawal done without the leave or permission of the court.[1] • Qualified Withdrawal – Under Rule 1(3) this type of withdrawal means withdrawal done with the leave or permission of the court.[2] And term adjustment in the adjustment suit means settlement or compromise of the dispute by the mutual consent of both parties, which led to an end in the litigation battle.[3]
Withdrawal of Suit
As we know that Order 23 of the Civil Procedure Code deals with the withdrawal and adjustment of suits. And withdrawal is divided into two types, Qualified Withdrawal, and Absolute Withdrawal.
Qualified Withdrawal or withdrawal with the leave or permission of the Court
In this type of suit, the court may or may not grant leave to the person to withdraw his suit or to withdraw a particle part of the claim in which the court knows that particular suit must fail due to the existent of the sufficient ground by which they permit the plaintiff to start a new suit or due to some formal defect in the suit. As the same situation happens in the case of Khatuna v. Ramsewak Kashinath, in which the court withdraw the suit due to some formal defect.[4] And in the Tarachand case court has granted leave to the party to withdraw a suit, so that plaintiff can file a fresh suit.[5]
But in the whole code, there is not a definition of the word formal defect, then the court, in the case of Ramrao v. Babu, held that the term formal defect means a defect in the procedure which does not affect the merit of the case.[6] But if the defect affects the merit of the case, then that particular defect cannot be considered as a formal defect.[7]
And in the case of Certificate office v. Kasturi Chand, the court has mentioned that what can be included in the formal defects, like failure to reveal the cause of action, wrongful joinder of parties, need of statutory notice mentioned in section 80 of Civil Procedure Code, etc.[8] This case also mentions the exception to the Withdrawal, under which if before the withdrawal the vested right is created, then that type of withdrawal is not considered valid.[9]
Withdrawal is made without the Leave or Permission of the Court
This suit can be withdrawal at any time after the starting of a suit. In this, the party has the right to withdraw his suit or withdraw some particular part of the suit against the other party or parties without the permission of the court. This right of the plaintiff is considered as his unqualified and absolute right, and the court also cannot refuse the plaintiff to withdraw a suit and force the plaintiff to proceed with the suit.[10] The only exception that vested right comes into existence after the prayer.[11] After the Amendment Act 1976, Rule 1-A was added to Order 23 under which the defendant would be allowed to exchange the position with the plaintiff when the suit is withdrawn by the plaintiff.
Will this rule apply to the Persons of Unsound Mind and Minors?
As per rule 1(2) of the Amendment Act of 1976 to the Civil Procedure Code, when a minor person withdraws a suit or by the person who is of unsound mind, then it is compulsory for the court to grant them leave to the plaintiff because suit cannot be withdrawn without the approval of the court.[12] Additionally, there should be an affidavit file in the court by the close friend of that person.[13]
Will Order 23 apply to the Writ Petitions, Revisions, Appeals, and Representative Suit?
In the case of A. Kutty v. G. Abraham, the court held that order 23 means withdrawal of suit would apply to all the other proceedings like Writ Petitions, Revisions, appeals.[14] However, the withdrawal of the suit will not apply to the representative suit. Because in the case of Sheela Barse v. Union of India, the court held that if one person takes the step to withdraw the suit, it does not mean that another person of the same group will also withdraw.[15] Hence mentioned that another person of the same group could continue the suit.[16]
Adjustment or Compromise of Suit
As we know that Adjustment of Suit means a suit that can be settled through the mutual consent of both the parties.[17] But when we analyze the general principle and prudence of this suit, we can find that all the disputes which are decided by way of suits are also eligible to be settled by way of adjustable or compromise of suit mentioned by the court in the case of Hiralal Moolchand v. Barot Lal.[18] Additionally, it is the choice of both parties that they want to adjust, compromise or settle the suit by the method of doing the agreement or settling by their free will for the satisfaction of the court.[19]
When we analyze Rule 3 of Order 23, we can find that it mentions the two conditions for passing the decree of compromise court mentioned in the case of Gurpreet v. Chatur Bhuj.[20] In the first condition, there should be an agreement between both parties with their signature, which shows that both of them have adjusted the suit or they have adjusted some part of the suit. The second condition, where the plaintiff got satisfied with the defendant, that all the questions related to the suit have been compromised, as mentioned in the case of Braym v. Union of India.[21] If these two conditions are satisfied, then only the decree of compromise can be passed by the court.
Additionally, Rule 3 applies to the civil suits, and other principles of this provision are also applied to the other proceedings. But adjustment on behalf of a minor by his guardian or close friend is not allowed and cannot be done without the permission of the court unless that permission is expressly recorded in the court proceeding. The pleader also has the authority to enter into the adjustment from the side of the client as he acts in the same position in which the client act. Adjustment suit is considered as a kind of suit which cannot be entered without the approval of the court. And no suit can be set aside by an adjustment on the ground that it is illegal or unlawful.[22] And if one party did not agree to adjust, then the court shall decide on it, and no adjournment can be granted.
Conclusion and Suggestion
In this research paper, we analyzed how order 23 mentions the suit withdrawal. By the above analysis, we can conclude that how the court has the power to grant the leave for the suit withdrawal either by his own choice or by the application filed by the plaintiff. Like grant of leave so that fresh new suit can be filed. Further, there can be a question related to the genuineness of the compromise between both parties at the time of the dispute. Therefore, by analyzing the above paper, the researcher wants to suggest that the suit’s adjustment should not be understood as the court’s decision because the adjustment decree should be a mere acceptance by the court of the agreement that was entered between both parties.
References:
[1] C.K. Takwani, Civil Procedure with Limitation Act, 363 (7th ed, 2009).
[2] Id.
[3] C.K. Takwani, Civil Procedure with Limitation Act, 364 (7th ed, 2009).
[4] Khatuna v. Ramsewak Kashinath, AIR 1986 Ori 1.
[5] Tarachand Bapuchand v. Gaibihaji Ahmed Bagwan, AIR 1956 Bom 632.
[6] Ramrao v. Babu, AIR 1940 Born 121.
[7] Waston v. Collector of Rajashahye, 13 MIA 160 (PC).
[8] Certificate Office vs. Kasturi Chand, AIR 1970 Ori 239.
[9] Id.
[10] Bijyananda v. Satrughna Sahu, AIR 1963 SC 1566 (1571)
[11] Ramamurthi v. Rajeswararao, (1972) 2 SCC 721.
[12] C.K. Takwani, Civil Procedure with Limitation Act, 366 (7th ed, 2009).
[13] Id.
[14] A. Kutty vs. G. Abraham, AIR 1987 Ker 247.
[15] Sheela Barse vs. Union of India, AIR 1988 SC 2211.
[16] Id.
[17] Supra Note 1.
[18] Hiralal Moolchand v. Barot Lal, AIR 1993 SC 1449.
[19] Compromise of Suit: Order 23 Rules 3,3-B Under CPC, (November 10, 2020), https://www.lawnotes4u.in/2019/02/compromise-of-suit-order-23-rules-3-3B-under-CPC.html.
[20] Gurpreet v. Chatur Bhuj, AIR 1988 SC 400.
[21] Braym v. Union of India, AIR 1991 SC 2234.
[22] C.K. Takwani, Civil Procedure with Limitation Act, 373 (7th ed, 2009).
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