A plaintiff applies under Order XXIII, Rule 1(3) of the Code of Civil Procedure, 1908 to withdraw a…
A request to withdraw only with liberty to file a fresh suit is composite. The court can grant the request if a ground in Rule 1(3) is established or refuse the request and…
Choose your answer
A plaintiff applies under Order XXIII, Rule 1(3) of the Code of Civil Procedure, 1908 to withdraw a suit only if granted liberty to file a fresh suit on the same subject matter. What can the court do on that application?
Answer and explanation
Correct answer B
A request to withdraw only with liberty to file a fresh suit is composite. The court can grant the request if a ground in Rule 1(3) is established or refuse the request and leave the suit pending. The Bombay High Court applied the rule against splitting such a request in Mario Shaw v. Martin Fernandez (1995).
Option feedback
Option A
Incorrect. The application makes withdrawal conditional on liberty to file afresh. The court cannot treat it as a request for unconditional withdrawal.
Option B
Correct. The court may grant withdrawal with liberty if the statutory grounds are met. If it refuses the composite application, the suit remains pending.
Option C
Incorrect. Rule 1(3) requires the court to be satisfied that the suit must fail because of a formal defect or that other sufficient grounds exist.
Option D
Incorrect. The court must decide the composite request as a whole and must be satisfied of a statutory ground before granting liberty.
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