Order 23 Rule 1 Cannot Be Misused: Punjab & Haryana HC Restores Withdrawn Suit

Case Name: Sunita Devi @ Sunita & Another vs Sher Singh & Others

Date of Order: 26 March 2025

Citation: CR No. 1137 of 2018

Bench: Justice Vikram Aggarwal

Held: Permission to withdraw a suit with liberty to file afresh under Order 23 Rule 1(3) CPC cannot be granted after conclusion of evidence, as it amounts to filling lacunae rather than curing formal defects.

Summary: Respondent No.1 (plaintiff) filed a suit for declaration of ownership over 20 kanals 8 marlas of land in Narnaul and sought to declare a subsequent sale deed null and void. After both sides had closed their evidence, the plaintiff sought to withdraw the suit with liberty to file afresh on the ground of fraud and misrepresentation. The trial court allowed withdrawal on 06.01.2018 subject to costs.

The High Court held that no “formal defect” or sufficient ground under Order 23 Rule 1(3) CPC was shown. Granting liberty in such circumstances would unjustly allow the plaintiff to overcome evidentiary shortcomings. Relying on precedents including Bhag Mal v. Khem Chand (1961), Municipal Committee v. Bala Nand (1993), and Vinod Kumar v. Gurdev Singh (2016), the Court emphasized that negligence cannot be cured through withdrawal and refiling.

Decision: The trial court’s order dated 06.01.2018 was set aside. The plaintiff’s application for withdrawal with liberty to file a fresh suit was dismissed, and the original suit was restored. The alternate prayer for amendment of plaint was left open for decision by the trial court as per law.