Skip to main content

Order 23 CPC - Code of Civil Procedure - WITHDRAWAL AND ADJUSTMENT OF SUITS

 Order 23 CPC Description

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


Nothing in this Order shall apply to any proceedings in execution of a decree or Order.


Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more