2004 (3) TMI 832

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..... he learned Civil Judge had declined to grant permission to the plaintiff to withdraw the Suit. The plaintiff had filed an application under Order XXXIII Rule 1 and Section 115 of the Code of Civil Procedure, stating therein that the Defendant had raised the preliminary objection to the effect that "the Suit as framed is not maintainable and is barred under Section 34 of the Specific Relief Ac .....

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..... less be filed subject to the law of limitation. No doubt the position is different where the Defendant has put in its representation. Order VII Rule 11 enumerates six circumstances in which a Plaint is to be rejected, one of which is that on a perusal of the Plaint, the relief claimed therein is barred by any law. Rule 13 of Order VII clarifies that the rejection of a Plaint on any of the grounds .....

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..... d by way of costs. It also appears to me that the Court cannot dictate the manner in which a Suit should be prosecuted, by directing the plaintiff to carry out amendments to the Plaint. In the present case the Defendant had appeared in the litigation. What if the "formal defect" had been discovered prior to his entering appearance. The plaintiff need not have moved an application under O .....

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..... to the observations of the Hon'ble Supreme Court in M/s. Hulas Rai Baij Nath Versus Firm K.B. Bass and Co., [1967]3SCR886 where it has been observed that "the language of Order XXXIII, Rule 1, sub-Rule (1), gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh Suit is sought under sub-Rule (2) of that Rule, the plaintiff becomes liable fo .....

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..... ion, nor is there any appearance on behalf of the Respondents. The Defendant/Respondent has shown complete disinterest in the case. Such a party does not need to be compensated by costs. 7. In these circumstances, the impugned Order is set aside and the Suit is permitted to be withdrawn with leave to institute a fresh Suit on the same subject matter, if permissible in law. The plaintiff will indu .....

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