Withdrawal of suit

Withdrawal of suit- It appears to us that the plaintiff in the application for withdrawal of the suit failed to point out the formal defect in framing the suit. The High Court Division did not also point out formal defect in framing the suit in allowing the prayer for withdrawal of the suit. This is, by now, well settled that in a suit for par- tition, the plaintiff and the defendant stand on the same' footing that is both are in the category of plaintiff. Ayub Ullah vs. Mohammad Elias Miah (Md. Abdul Wahhab Miah J) (Civil) 14 ADC 127 When withdraw of suits as well as appeal be allowed, rule 1 of Order XXIII, CPC- A party should not be granted permission to withdraw the appeal as well as the suit unless it is clearly established that the suit as well as the appeal is bound to fail on a mere formal defect which could not be rectified by the plaintiff under normal ordinary circumstances and the interest of justice requires that such permission should be granted. (Para- 27). Government of the PeopleÕs Republic of Bangladesh, represented by the Deputy Commissioner, Satkhira and others -Vs- Md. Babor Ai Gazi and others. (Civil) 9 CLR (AD) 185 The application for withdrawal of the suit having not stated specifically the legal, formal or other defects which cannot be cured even by amendment of the plaint and the assertions made therein being vague and in lump, the order for withdrawal with liberty to sue afresh is set-aside. (Para- 29). Government of the PeopleÕs Republic of Bangladesh, represented by the Deputy Commissioner, Satkhira and others -Vs- Md. Babor Ai Gazi and others. (Civil) 9 CLR (AD) 185 Whether the application for withdrawal of the suit was required to be signed by the plaintiff- respondent. Whether the same also was required to be verified by her or supported by an affidavit and whether the statements of the plaintiff was needed to be recorded before passing the order allowing her to withdraw the suit with permission to sue afresh. Md. Abdur Rahman Pramanik and others - Vs.- Most. Alefa Bewa and others (Civil) 15 ALR (AD) 211-221 The plaintiff filed two applications: one for withdrawal of the suit from the list of peremptory hearing and the other under Order VI, rule 17 of the Code for amendment of the plaint. The learned Joint District Judge by the order of the same date rejected both applications and directed the plaintiff to get ready at once for hearing. Thereafter, as the plaintiff was found absent on repeated calls, the suit was dismissed for default with a cost of taka 4,000.00. Dr. A.T.M. Mizanur Rahman vs. Ali Hossain (Md. Abdul Wahhab Miah J) (Civil) 13 ADC 393 Prayer for withdrawing a suit-As the plaint does not disclose any formal defect, the provision for withdrawal of the suit is not at all attracted. Besides, there had earlier been an order of remand and opportunity to produce all the papers. Khabiruddin vs Bangladesh 43 DLR (AD) 201. The withdrawal of suit by necessary implications blots out the effect of the judgments and decrees prior to withdrawal. If the application for withdrawal is allowed and at the same time the decrees passed by the courts below be retained it would create a situation contradictory in terms. An order of setting aside of judgments and decrees in the suit withdrawn should naturally follow. Abdur Rahman and others vs Kheru Malitha and others 50 DLR (AD) 71 Withdrawal of the suit with liberty to sue afresh-Plea of formal defects in the schedule to the plaint-Defects can be amended by filing a petition for amendment of the plaint-Discretion vested in the court under Order XXIII, rule 1(2) CPC has been properly exercised-No illegality committed in rejecting revisional application summarily. Md Badruddin Moral vs Santosh Kumar Sen 41 DLR (AD) 156. Dismissal of a suit for non-prosecution does not amount to withdrawal of the suit and the plaintiff is not precluded to file a fresh suit on a new cause of action. Amir Hossain Khairati vs Abdul Aziz Bepari and others 47 DLR (AD) 106. Since the cause of action for filing a suit for partition is recurring and the order of withdrawal of the suit with permission to sue afresh is still in force, the heirs of the deceased-plaintiff, Halimon Bibi, if so advised, can still file a suit for partition.Abdur Rahman Pramanik (Md) vs Alefa Bewa (Civil) 68 DLR (AD) 219 The learned Advocate who filed the vokalatnama on behalf of the plaintiff-respondent was quite competent to file the application for withdrawal of the suit with permission to sue afresh and there was no necessity on the part of the plaintiff- respondent to sign the same. Md. Abdur Rahman Pramanik and others -Vs. Most. Alefa Bewa and others (Civil) 15 ALR (AD) 211-221 From the two orders passed in the two appeals as quoted herein before, it is clear that the plaintiff's suit for partition stood withdrawn on 24.02.1969 and with the withdrawal of the suit, the pre- liminary decree passed therein became non existent or nonest, even then in the order permitting the plaintiff to with- draw the suit with permission to suit afresh, it was specifically stated "In view of the withdrawal of the suit there stand no decree." And because of with- drawal of the suit, the appeals were not disposed of on merit. Md. Abdur Rahman Pramanik vs. Most. Alefa Bewa (Md. Abdul Wahhab Miah J) (Civil) 13 ADC 428