Withdrawal and Compromise of Suits
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Withdrawal and Compromise of Suits
Safwan Yahiya Roll No: 622 th
Withdrawal of Suits
Compromise of Suits
Introduction The Fundamental principle of English Law that wherever there is a right, there is a remedy (ubi jus ibi remedium) has been adopted by the Indian legal system also. In fact, right and remedy are but the two sides of the same coin and they cannot be dissociated from each other. Accordingly, a litigant having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. A suit for its maintainability requires no authority of law and it is enough that no statute bars it. Sections 26 to 35-B, Orders 1 to 20 of the First Schedule deal with the procedure relating to suits. Orders 1 and 2 provide for parties to suits and frame of suits. The ter m “suits “has not been defined in the Code. According to the dictionary meaning, ‘suit’ is a generic term of comprehensive signification referring to any proceeding by one person or persons against another or others in a court of law wherein the plaintiff pursues the remedy which the law affords him for the redress of any injury or the enforcement of a right, whether at law or in equity. Ordinarily, a suit is a civil proceeding instituted by the presentation of a pliant. There are four essential of a suit: (1) Opposing parties; (2) Subject matter in dispute; (3) Cause of action; and (4) Relief
Withdrawal of Suits Order 23 deals with withdrawal and compromise of suits. It provides for two types of withdrawals: (i)
Absolute withdrawal, i.e. withdrawal without the leave of the cou rt; and
Qualified withdrawal, i.e. withdrawal with the leave of the cou rt.
(a)Withdrawal without leave of court: Rule 1(4)
At any time after the institution of a suit, the plaintiff may abandon his suit or abandon a part of his claim against all or any of the defendants without the leave of the court. This right is absolute and unqualified and the court cannot refuse permission to withdraw a suit and compel the 1
plaintiff to proceed with it , unless vested right comes into existence before such prayer is made . However, in case such abandonment or withdrawal of a suit or part of a claim without the leave of the court, the plaintiff will be precluded from instituting a fresh suit in respect of the same cause of action. The plaintiff also becomes liable for such costs as the court may award to the defendant. Rule 1-A of Order 23 as added by the Amendment Act 1976 provides for the circumstances under which the defendant may be allowed to be transposed as a plaintiff where the suit is withdrawn by the plaintiff. (b)Withdrawal with leave of court: Rule 1(3) (1)Grounds
Where the court is satisfied that a suit must fail by reason of some formal defect, or there are 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 grant permission to withdraw such suit or such part of the claim with liberty to file a fresh suit in respect of the subject-matter of such suit or such part of the claim on such terms as it thinks fit. Such permission may be granted by the court on the following
Bijyananda v. Satrughna Sahu, AIR 1963 SC 1566 (1571) Ramamurthi v. Rajeswararao, (1972) 2 SCC 721
Formal defect : Though the expression "formal defect" has not been defined in the Code, it 3
connotes some defect of form or procedure not affecting the merits of the case ; such as want of statutory notice under Section 80 of the Code, misjoinder of parties or of causes of action, non payment of proper court fee or stamp fee, failure to disclose cause of action, mistake in not seeking proper relief, improper or erroneous valuation of the subject-matter of the suit, absence of territorial jurisdiction of the court, or defect in prayer clause, etc. But a defect affecting the merits of the case, or a defect which goes to the root of the plaintiff's case cannot be said to be a 4
formal defect , e.g.: non-joinder of a necessary party, omission to substitute heirs, omission to include all the causes of action in the plaint, non-registration of a partnership firm, bar of limitation, deliberate undervaluation of the subject-matter of the suit, addition of a new factual plea, failure to bring legal representatives on record, etc.9 Other grounds : The expression "other sufficient grounds" should generally be construed
ejusdem generis (of the same kind or nature) with formal defect.' For instance, where the suit was premature or it had become infructuous, or where the plaintiff felt that the defendant was absent and even if the decree was passed, it could not be executed, it was held to be a sufficient ground. Wide and liberal meaning should be given to the expression "sufficient grounds" by 5
exercising power in the interest of justice . (2)Effect of leave
It is at the discretion of the court to grant such permission and it can be granted he court either on an application of the plaintiff or even suo motu. Such permission may be granted on such terms as to costs, etc. as the court thinks fit. The granting of permission to withdraw a suit with liberty to file a fresh suit removes the bar of res judicata. It restores the plaintiff to the position which he would have occupied had he brought no suit at all. (c)Suit by minor: Rule 1(2)
By the Amendment Act of 1976, a specific provision has been made that where the plaintiff is a minor, neither the suit nor any part of the claim can be abandoned without the leave of the court.
Ramrao v. Babu, AIR 1940 Born 121 Waston v. Collector of Rajashahye, 13 MIA 160 (PC) 5 Baniram v. Gaind, (1981) 4 SCC 209 4
Sub-rule (2) of Rule 1 enacts that an application for leave under the proviso to sub-rule (1) of Rule 1 must be accompanied by an affidavit of the next friend and also, if the minor of such person is represented by a pleader, by a certificate of the pleader to the effect that the proposed abandonment is, in his opinion, for the minor's benefit.
(d)Withdrawal by one of the plaintiffs: Rule 1(5)
Where there are two or more plaintiffs in a suit, the suit or part of the claim cannot be abandoned or withdrawn without the consent of all the plaintiffs.One of such plaintiffs, however, may abandon or withdraw from the suit to the extent of his interest in it.
(e) Limitation: Rule 2
A plaintiff withdrawing a suit with liberty to file a fresh suit is bound by the law of limitation in the same manner as if the first suit has not been filed at all." (f) Applicability to other proceedings (i) Appeals and revisions 6
The provisions of this order apply to withdrawal of appeals and revisions . The appellant has a right to withdraw his appeal unconditionally and if he makes such an application, the court must grant it, subject to costs, and has no power to say that it will not permit the withdrawal and will 7
go on with the hearing of the appeal . Similarly, in appropriate cases, an appellate cou rt can grant permission to withdraw a suit with liberty to file a fresh suit." Such power, however, has to be exercised sparingly and cautiously.
Manharlal v. Meena Agencies, 1986 Born Rent Cas 106 (Guj) Bijyananda v. Satrughna Sahu, AIR 1963 SC 1566
Where the plaintiff sues in a representative character, he cannot abandon or withdraw the suit or a part of the claim. He may, however, get out of the suit, but that does not put an end to the litigation where other persons are interested in it and have a right to come in and continue the litigation. (iii)Writ petitions
The general principles for withdrawal of suits also apply to petitions under Article 32 or Article 226 of the Constitution. Ordinarily, therefore, a High Court or the Supreme Court would not refuse the prayer of the petitioner or his advocate to allow him to withdraw the petition, if such withdrawal is unconditional. But he cannot thereafter institute a fresh petition on the same cause of action. (iv)Execution proceedings
The provisions of Order 23 do not apply to execution proceedings. The court has no power to allow an application for execution to be withdrawn with liberty to file a fresh application. Withdrawal of an application without the permission of the court to bring a fresh application 8
hence is no bar to a fresh application for execution within the period of limitation .
Compromise of Suits (a)General
After the institution of the suit, it is open to the parties to compromise, adjust or settle it by an 9
agreement or compromise . The general principle is that all matters which can be decided in a suit can also be settled by means of a compromise.Rule 3 of Order 23 lays down that (i)
where the court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement in writing and signed b y the parties; or
Palaniandi v. Papathi, AIR 1914 Mad 1: 15 Mad LT 100 Motilal v. Mahmood, AIR 1968 SC 1087
Where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall record such agreement, compromise or satisfaction and pass a compromise decree accordingly.
(b)Satisfaction of court
It is the duty of the court to satisfy itself with regard to the terms of agreement. The court must be satisfied that the agreement is lawful and it can pass a decree in accordance with it. The court should also consider whether such a decree can be enforced against all the parties to the compromise. A court passing a compromise .decree performs a judicial act and not a ministerial act. Therefore, the court must satisfy itself by taking evidence or on affidavits or otherwise that the agreement is lawful. If the compromise is not lawful, an order recording compromise can be recalled by the court. In case of any dispute between the parties to the compromise, it is the duty of the court to inquire into and decide whether there has been a lawful compromise in terms of which the decree should be passed. An agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of Rule 3. The court in recording compromise should not act in a casual manner. Where it is alleged by one party that a compromise has not been entered into or is not lawful, it is the duty of the court to decide that question. (c)Compromise on behalf of minor
No next friend or guardian of a minor shall, without the leave of the court, enter into any agreement or compromise on behalf of the minor with reference to the suit, unless such leave is expressly recorded in the proceedings. (d)Compromise by pleader
A pleader stands in the same position as his client with regard to his authority to compromise the suit. An advocate appearing for a party, therefore, has always an implied authority to enter into a compromise on behalf of his client. (e) Representative suit: Rule 3-B
No agreement or compromise in a representative suit can be entered into without the leave of the court. Before granting such leave, notice to the persons interested should be given by the court. (f) Compromise decree and res judicata
A compromise decree is not a decision of the court. It is acceptance by the court of something to which the parties had agreed. A compromise decree merely sets the seal of the court on the agreement of the parties. The court does not decide anything. Nor can it be said that a decision of 10
the court is implicit in it. Hence, a compromise decree cannot operate as res judicata . In some 11
cases, however, it is held that a consent decree would also operate as res judicata .It is submitted that the former view is correct since, in a consent decree, it cannot be said that a suit is heard and finally decided by the court on merits. Such a decree, however, may create an estoppel between the parties. (g) Compromise decree and estoppel
A compromise decree is not a decision on merits as it cannot be said that the case was "heard and finally decided". Nevertheless, it is based on consent or compromise of parties and, therefore, will operate as an estoppel.
(h) Execution of compromise decree
A consent decree is executable in the same manner as an ordinary decree. But if the decree gives effect to an unlawful compromise or is passed by the court having no jurisdiction to pass it, it is a nullity and its validity can be set up even in the execution. The underlying principle is that a defect of jurisdiction strikes at very authority of the court to pass a decree and such a defect cannot be cured even by the consent of parties. Prior to the Amendment Act of 1976, a compromise decree could be passed only so far as it related to the suit, but, by the Amendment Act, it is specifically provided that whether or not the subject-matter of the agreement, compromise or satisfaction is identical with the subject-matter of the suit, if it is between the parties and the compromise is a lawful one, the court can pass such a decree. 10
Subba Rao v. Jagannadha Rao, AIR 1967 SC 591 Shankar Sitaram v. Balkrishna sitaram, AIR 1954 SC 352
(i)Bar to suit: Rule 3-A
No suit can be filed to set aside a compromise decree on the ground that it not lawful.39 (j) Appeal
No appeal lies against a decree passed by the court with consent of parties., nor a suit can be instituted to set aside a compromise decree on the ground that such compromise is not lawful. However, Rule 1-A(2) of Order 43 lays down that in an appeal against a decree passed after recording or refusing to record compromise, the order recording or refusing to record a compromise can also be questioned. A party challenging the compromise can file an appeal 12
under Section 96(1) of the Code and Section 96(3) shall not bar such an appeal . Likewise, such a decree can be challenged by filing a suit on the ground of fraud, undue influence or coercion. A compromise decree is a creature of an agreement and does not stand on higher footing than the agreement which preceded it. It is, therefore, liable to be se-aside on any of the grounds 13
which may invalidate an agreement.
Banwari Lal v. Chando Devi, (1993) 1 SCC 581 Ruby Sales & Services v. State of Maharashtra. (1994) 1 SC C 531 (535).
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