ORDER XXIII. WITHDRAWAL AND ADJUSTMENT OF SUITS.
1[1. Withdrawal of suit or abandonment of part of claim
(1) At any time after the institution of a suit, the plaintiff 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 1 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 preclude 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.]
1. Subs, by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).
HIGH COURT AMENDMENTS
Karnataka.-In Order XXIII, in rule 1, after sub-rule (4), insert the following sub-rule, namely:-
“(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 the permission to withdraw the suit, notice of such application shall be given in the manner prescribed by sub-rule (3) of 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 may be. If upon such application being made a defendant in the same suit having the same interest as that of the plaintiffs applies for permission to be transposed a§ plaintiff to conduct the suit further, he shall be permitted to do so and the plaintiffs application dismissed.” (w.e.f. 30-3-1967)
Orissa.-In Order XXII, in rule 1, in sub-rule (1), after the words “institution of a suit”, insert the words “but not after the passing of the preliminary decree in the suit”, (7-5-1954)
1[1A. When transposition of defendants as plaintiffs may be permitted
Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]
1. Ins. by Act No. 104 of 1976, s. 74 (w.e.f. 1-2-1977).
2. Limitation law not affected by first suit
In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.
3. Compromise of suit
Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise 1[in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith 2[so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:]
1[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]
2[Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;]
1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).
2. Subs. by Act 104 of 1976, sec. 74. for “so far it relates to the suit” (w.e.f. 1-2-1977).
HIGH COURT AMENDMENTS
Allahabad.-In Order XXIII, in rule 3,-
(i) between the words ‘or compromise’ and ‘or where’, insert the words, ‘in writing duly signed by the parties’ and between the words ‘subject-matter of the suit’ and the words ‘the Court’, insert the words ‘and obtained an instrument in writing duly signed by the plaintiff, (ii) at the end of the rule, insert the following proviso and Explanation, namely:-
“Provided that the provisions of this rule shall not apply to or in any way affect the provisions of Order XXXIV, rules 3, 5 and 8.
Explanation.-The expressions, ‘agreement’ and ‘compromise’, include a joint statement of the parties concerned or their counsel recorded by the Court, and the expression ‘instrument’ includes a statement of the plaintiff or his counsel recorded by the Court.”
[Vide Notification No. 155/Alld-87, dated 31st August, 1974.]
[Ed.-This amendment relates to rule 3 prior to its amendment made by Central Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).]
Karnataka.-In Order XXIII,-
(i) re-number rule 3 as sub-rule (1) thereof
(ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-::
“(2) Where any such agreement or compromise as is referred to in sub-rule (1) is placed before the Court by a party suing or defending in a representative capacity in a suit instituted, conducted or defended under the provisions of rule 8 of Order I of this Code, the Court shall not proceed with the consideration of the same or to pass a decree in accordance therewith without first notice of the application for recording such agreement or compromise in the manner prescribed in sub-rule (1) of rule 8 of Order 1 of this Code for giving notice of the institution of such suit. The expenses of giving such notice shall be borne by such party or parties as the Court may direct.” (w.e.f. 30-3-1967)
Madras.-In the Order XXIII, in rule 3, in the proviso, for the words “Provided that”, the following shall be substituted, namely:-
“Provided that the subject-matter of the agreement, compromise or satisfaction, in so far as it differs from the subject-matter of the suit, is within the territorial and pecuniary jurisdiction of the Court concerned: Provided further that.”
[Vide R.O.C. No. 3382/78-F1 and S.R.O. No. G-3/81 (w.e.f. 23-1-1981).]
Kerala.-In Order XXIII/ after rule 3, insert the following rule, namely:-
“3A. Settlement of oath.–If the parties agree to have the suit or any part of it decided by an oath taken by one of them in Court or elsewhere and tender a written agreement signed by both of them setting forth the terms of the oath and the place where it is taken, the Court may accept such agreement. After the oath has been taken in the manner proposed, the Court shall decide the case in terms of the agreement. After the agreement has been accepted by the Court, it shall not be competent to any of the parties to withdrawn therefrom without the leave of the Court. If any party withdraws or refuses to take the oath without lawful excuse, the Court may decide the case against him or pass such order as it deems proper.” (w.e.f. 9-6-1959)
1[3A. Bar to suit
No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.
1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).
3B. No agreement or compromise to be entered in a representative suit without leave of Court
(1) no agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.
(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.
Explanation.-In this rule, “representative suit” means,-
(a) a suit under section 91 or section 92,
(b) a suit under rule 8 of Order I,
(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family,
(d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.]
4. Proceeding in execution of decrees not affected