MARIYAMMA Vs. KOCHOUSEPH

JUDGEMENT

(1.) A short, but interesting question arises in this revision. Can the plaintiff who has filed an application to withdraw the suit withdraw the application ?

(2.) Respondent-plaintiff sought withdrawal of the suit filed by him against revision petitioner by filing an application of which notice was given to revision petitioner. Before order was pronounced on that application, respondent filed another petition seeking withdrawal of that application. The Court below allowed that application That order is under challenge in this revision.

(3.) Order 23 Rule 1 Civil Procedure Code permits the plaintiff to withdraw his suit at any time with liability to institute a fresh suit in respect of the subject matter of such suit. According to revision petitioner when once a request for withdrawal has been made it takes effect from the date of such petition and it is not open to the plaintiff to withdraw that application. Reliance is placed on the decision in Smt. Raisa Sultana Begam and Others Vs. Abdul Qadir and Others, AIR 1996 Allahabad 318 , where it was held that no act is required to be done by the Court to complete or effectuate the withdrawal of the suit. Withdrawal of the suit is itself its end. It is further observed that the provision is that the plaintiff may withdraw the suit. What is to be done is unilateral act by the plaintiff. Neither defendant nor the Court has any act to do complete or effectuate it. It is further observed that the consequence of an act of withdrawal is that the plaintiff ceased to be a plaintiff before the Court. If he is the only plaintiff and withdraws the whole of the suit the suit comes to end and nothing remains pending before the Court. in that view of the matter it was held that Order 22 Rule 1 does not require any order and that there can be no question of an order if no application is to be made by the plaintiff. It was held that once a request for withdrawal has been made it takes effect immediately and withdrawal of that request is not permissible.