Order XXIII, Rule 1--Ap-
plicability of to cases of withdrawal of writ petitions.
HEADNOTE:
Sub-rule (1) of rule 1, Order XXIII ... noted that while in sub-rule (1) of the former
rule 1 of Order XXIII of the Code the words 'withdraw his
suit
taken to the order that it was premature. It
was the further submission, of the learned counsel that Order XXIII Rule
1(3) vests wide ... avoid the bar in Order II Rule 2 and Section 11
CPC.
The provision in Order XXIII Rule 1 CPC is an exception
application for withdrawal of the suit in terms of Order XXIII Rule 1 (3) CPC .
The District Munsif allowed the application filed by the appellants ... hence the appellants had to file an application under
Order XXIII Rule 1 (3) CPC and the trial court was right in allowing the
application
fresh application to set aside the exparte order.
12. As per Order XXIII, Rule 1 sub-rule (4) C.P.C ., when the suit ... Order XXIII, Rule 1 and sub-rule (2) and sub-rule (3) all are to be read together. Application seeking permission of the Court
under sub-rule (1) of Rule 1. In other
words, since the appellant had applied for withdrawal of the
suit under Order XXIII Rule 1 ... respondent No.1 (defendant No.1).
Such order, in our view, was in conformity with sub-rule (3) of
Rule 1 and was rightly upheld
plaintiffs are precluded from filing the present
suit by Order XXIII Rule 1 (4) of the Code. He submits that Order
XXIII Rule 1 enables ... institute the fresh suit
the present suit is barred under Order XXIII Rule 1 (4) of the Code. He
supports his arguments by relying upon
right in contending that the bar under Order IX Rule 9 and Order XXIII Rule 1(4) C.P.C is not applicable to partition ... proper to hold that the bar under Order IX Rule 9 and Order XXIII Rule 1(4) C.P.C is not applicable. Thought
noted that while in sub-rule (1) of the former Rule 1 of Order XXIII of the Code the words 'withdraw ... suit' had been used in sub- rule (1) of new Rule 1 of Order XXIII of the Code, the words 'abandon his suit
sense contemplated by Order XXIII, Rule 1, of the Civil Procedure Code. Under Sub-rule (2) of that rule, a plaintiff may, in certain circumstances ... Rule 10, of the Civil Procedure Code. It is urged that even then a fresh suit would be barred under Order XXIII, Rule 1
unambiguous. Under Order
XXIII Rule 1, there are five sub-rules. Rule (1) speaks about
abandonment of claim, Rule (2) speaks about abandonment of such ... Rule (1) of Order XXIII and not beyond that. Therefore if an
order is passed under Order XXIII Rule (1) sub-rule (3), such order
