Withdrawal of suit

Withdrawal of suit (also known as abandonment of suit) means a retraction /

secession of a previously held position by the party/parties in a legal
proceeding. The suit may be withdrawn either in the trial or in the appellate
stage. The provision of withdrawal and abandonment is founded on the
principle that the law confers upon a person no right or benefit which he does
not desire invito beneficium non datur. The second suit after withdrawal of the
first one, without seeking permission to file a fresh suit, is barred, not because
of the principle of res judicata, but because, whoever, abandons or disclaims a
right, will lose it.
1. (1) At any time after the institution of a suit the plaintiff may, as against all
or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied

Details

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other 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 abandon such part of a claim with liberty to institute a fresh
suit in respect of the subject-matter of such suit or such part of a claim.
[Order 23 rule 1 of the Code of Civil Procedure, 1908]
It provides a discretion to the Court to allow or reject an application for
withdrawal of a suit with permission to sue afresh. But this discretion must be
exercised judicially in accordance with established judicial norms Code of
Civil Procedure, 1908 (V of 1908), Order XXIII Rule 1(2). [Md. Imran
Hossain Momin vs. Md. Amir Hossain and others, 16 BLD (HCD) 624]

Commission
The concept of Commission is an important subject matter in the branch of CPC. Commission
is an impartial person who is appointed by the Court and act as an agent of the Judge. The power
of the Court to issued Commission by the Court for doing full and complete Justice between the
parties.
When Commission is appointed:
It is the discretionary power of the Court to appoint a Commission and a court may appoint a
Commission either or an application by a party to the suit or its own motion.

How Commission is issued:

Section 75 of the CPC enacts that the Court may issue a Commission for any of the following
purposes:
1.

to examine any Person

2.

to make a local investigation

3.

to examine or adjust accounts

4.

to make a partition

At present, The Court may issue a Commission for any of the following purposes
1)

to examine any Person

2)

to make a local investigation

3)

to examine or adjust accounts

4)

to make a partition

5)

to make a scientific investigation

6)

to conduct for sale , And

7)

to perform a ministerial act.

There are shortly discussed about the above grounds, which are given below.

To examine any Person:

Section (76 78), order (XXVI) 26, Rules (1 8) of the Code of Civil Procedure deals with the
Commission to examine of witness. The court may issue a commission for the examination on
interrogatories or otherwise of any person in the following circumstances:
1) If the person to be examined as a witness reside within the local limits of the courts
Jurisdiction ;
2)

If he resides beyond the local limits of the Jurisdiction of the court, or

3)

If he is about to leave the Jurisdiction of the court.

To make a local investigation:

The court may, in any suit, issue a commission to such person as it thinks fit directing him to
make local investigation.
To examine or adjust accounts:
In any suit in which an examination or adjustment of accounts is necessary, the court may issue a
commission to such person as it thinks fit directing him to make such examination or adjustment.
To make a Partition:
Where a preliminary decree for partition of immoveable property has been passed, the court may
issue a commission to such person as it thinks fit to make a partition or separation according to
the rights as declared in such decree.
To make a scientific investigation:
Where any question arising in a suit involves any scientific investigation the court may issue a
Commission to such person as it thinks fit, directing him to enquire into such question and report
thereon to the court.
To conduct for sale:
Where, in any suit, it becomes necessary to sell any moveable property which is in the custody of
the Court, pending the determination of the suit and which can not be conveniently preserved,
the court may, issue a commission to such person as it thinks fit, directing him to conduct such
sale and resort thereon to the court.
To perform a ministerial act:
Where any question arising in a suit involves the performance of any ministerial act which
cannot, in the opinion of the Court, be conveniently performed before the court, the court may
issue a commission to such person as it thinks fit, directing him to perform that ministerial act
and report thereon to the court.