A plaintiff is at liberty to withdraw from a suit at any time (subject to any order as to costs that the Court may pass), but if he wishes to reserve his right to bring a fresh suit on the same cause of action he must obtain the permission of the Court under Order XXIII, Rule 1,'Civil Procedure Code. Permission can be granted only when the Court is satisfied that (a) there is some formal defect fatal to the suit, or (b) other sufficient grounds are present.Note 1. - The object of the rule is to prevent a defeat of justice on technical grounds and not to enable a plaintiff after he has failed to make out his case, to obtain an opportunity of re-opening the dispute at a future period. Courts should, therefore, be careful to see that the allegation of the existence of a formal defect is not mere pretext to get out of an inconvenient or ill-advised litigation with a right reserved to harass the defendant on another occasion.Note 2. - Withdrawal from claim under sub-rule (3) of Order XXIII, Rule 1, should be recorded in the order-sheet only, but when withdrawal is made under sub-rule (2), with the leave of the Court to bring a fresh suit, it may be recorded either in the order-sheet or as a separate order.
