Site icon SCC Times

Ker HC | Equity cannot allow a remedy affecting balance of interest between the parties; Order allowing application for withdrawal of suit at appellate stage set aside

Kerala High Court

"Mere attempt by the mediators cannot save the laches which otherwise looms large to strain such relationship"; Kerala HC dissolves marriage on the ground of cruelty

Kerala High Court: R. Narayana Pisharadi, J., setting aside the order against impugned applications, held, “The plaintiff has no absolute right, at the appellate stage, to withdraw from the suit.”

Brief Facts

In the present case, the Court was to determine the interest of the defendant in a case where the plaintiff sought to withdraw the suit at an appellate stage. The plaintiff filed two applications under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908 (for short ‘the Code’) praying that he may be permitted to withdraw from the two suits with liberty to sue the defendant/defendants afresh on the same subject matter. These applications were filed by the plaintiff on the plea that his counsel opined that there was so many defects in the framing of the suits and that the proper remedy ought to have been to file a suit for declaration of title of the disputed property and recovery of possession.  The defendant filed objection to the abovementioned two applications, contending that no sufficient ground exists so to grant permission to the plaintiff to withdraw from the said suits. Order allowing the two applications were made by the first appellate Court, which is under challenge in the present petition.

 Observations

The Court restated the language of Order XXIII Rule 1 of the Code and cited settled precedents on the present subject matter.

 Decision

While allowing both the original petitions, the impugned orders are set aside. Court remanded the matter to the appellate Court for fresh consideration, to evaluate if any right in the favour of defendant seems to have accrued and if any grounds under clause (a) or (b) of Order XXIII Rule 1(3) existed for permitting such withdrawal.  [Sabu Isaac v. Antony Chacko, 2020 SCC OnLine Ker 4230, decided on 05-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Exit mobile version