1

IN THE COURT OF SMT. RACHNA T. LAKHANPAL :

CIVIL JUDGE: DELHI
SUIT NO.36/06
Suyasha Vohra

...Plaintiff
Versus

Delhi Development Authority

... Defendant

ORDER
By this order, I shall dispose off an application
U/s 151 CPC r/w Order 23 rule 1 CPC.
2.

The brief facts of the case for deciding this

application are that plaintiffs had moved an application

U/o 23 Rule 1 CPC for withdrawal of the present suit
with liberty to file fresh suit in respect of the subject
matter of the suit as per provisions of order 23 Rule 1 &
3 r/w Section 151 CPC. Under present application filed
by defendant No.3, Defendant No.3 has submitted that
when the application for withdrawal was filed by the
plaintiffs earlier alongwith affidavit the suit stood
abandoned and now plaintiff cannot withdraw her
withdrawal application.

Plaintiffs have submitted in

their reply that they had moved an application for

withdrawal on the assurance of DDA but now the

plaintiffs

want

to

withdraw

her

application

for

withdrawal which was earlier filed on the assurance of

DDA. At this stage, it is relevant to refer the order U/o
23

Rule

(i)

which

provides

for

withdrawal

of

abandonment of part of claim. Order 23 Rule (1) reads

as under:
'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'.
3.

The rule does not require any order in case of

withdrawal (abandonment) without permission. It does

not

require

drawing

of

decree

but

action

of

abandonment is complete with the filing of application.

Once

abandonment is complete the same cannot be

withdrawn since it would have effect of revival of the suit

itself.

The act of filing of withdrawal application is

unilateral and it is complete as soon as the application

was filed. But in present case the bare perusal of the
application for withdrawal makes it clear that it was
application U/o 23 (1) (3). At this stage, it is relevant to
refer order 23 Rule 1 (3) which reads as under:(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.

A bare perusal of sub Rule (1) & (3) reflects that

under the Sub Rule (1) of Rule 1 of order 23

abandonment is simple and no permission of the court is
required, whereas under sub rule 3 of Rule 1 Order 23
permission of the court is required to seek liberty. In the
present

case,

plaintiff

had

filed

application

for

withdrawal and sought liberty of the court. It shows that

abandonment was not simple but court's permission was
required on the application for withdrawal, therefore it
was not unilateral act. So, it cannot be said that
withdrawal of the suit was complete with the act of filing
of withdrawal application.
the

plaintiff

from

Now the court cannot stop

withdrawing

her

withdrawal

application. Therefore, application of the defendant U/s

151 CPC stands dismissed.
(RACHNA T. LAKHANPAL)
CIVIL JUDGE: DELHI
ANNOUNED IN THE OPEN COURT
ON 29.11.2007.