Allahabad High Court
IQBAL HUSSAIN KHAN AND ANOTHERversusRASHEED KHAN AND 2 OTHERS
- Decided
- Bench
- ABDUL SHAHID
Holding
The condition permitting the plaintiff to file a fresh suit is not justifiable and is set aside, with the suit treated as withdrawn.
Summary
The appellants challenged an order of the Civil Judge (Senior Division) that allowed the plaintiff to withdraw his suit for permanent injunction under Order XXIII Rule Part 1(3) of the CPC, subject to a condition that the plaintiff could file a fresh suit if desired. The defendant consented to the withdrawal but objected to the imposed condition, arguing it was unwarranted. The High Court held that a plaintiff has an absolute right to withdraw a suit at any stage and no party can compel continuation of the proceedings. Consequently, the condition permitting a fresh suit was deemed unjustifiable and was set aside. The suit was treated as withdrawn, with a clarification that the plaintiff may institute a fresh suit in the future if a cause of action arises. The revision petition was thereafter disposed of.
Issues considered
- Whether the condition imposed by the trial court allowing the plaintiff to file a fresh suit is legally valid under Order XXIII Rule Part 1(3) CPC.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XXIII Rule Part 1(3)
Subjects
- withdrawal of suit
- civil procedure
- condition on withdrawal
- fresh suit
- permanent injunction
- revision
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CIVIL REVISION No. - 54 of 2026
Iqbal Hussain Khan And Another
.....Revisionist(s)
Versus
Rasheed Khan And 2 Others
.....Opposite
Party(s)
Counsel for Revisionist(s) : Ghazanfar Abbas, Mohan Lal Pandey,
Syed Wajid Ali
Counsel for Opposite Party(s) :
Court No. - 39
HON'BLE ABDUL SHAHID, J.
1. Heard learned counsel for the appellants.
2. He has challenged the impugned order dated 21.02.2026 passed by Civil
Judge (Senior Division) (F.T.C.), Room No. 27, Shahjahanpur, whereby the
application of the plaintiff for withdrawal of the suit under Order XXIII Rule
Part 1(3) C.P.C. has been allowed at a cost of Rs. 100/-.
3. Learned counsel for the appellant/defendant has submitted that he has no
objection to the withdrawal of the suit. However, he has raised objections to
the condition imposed by the learned trial court permitting the plaintiff to
file a fresh suit, if so desired.
4. Learned counsel for the appellant/defendant has further submitted that the
suit filed by the plaintiff was for permanent injunction and not for
declaration of title. There is substance in the submission made by learned
counsel for the appellant/defendant.
5. The plaintiff/respondent has the right to withdraw his suit at any stage,
and no party can compel him to continue the proceedings. Therefore, the
withdrawal of the suit does not suffer from any illegality or infirmity.
However, the condition imposed by the learned trial court is not justifiable
and is liable to be set aside.
6. Accordingly, the impugned order is modified to the extent that the
condition permitting the plaintiff to file a fresh suit is set aside. The suit shall
be treated as withdrawn on the application of the plaintiff. However, it is
CLRE No. 54 of 2026
2
clarified that if any cause of action arises in favour of the plaintiff, he shall
be at liberty to institute a fresh suit in accordance with law.
7. With these observations, the present revision is disposed of.
May 5, 2026
K.K. Maurya
(Abdul Shahid,J.)
Digitally signed by :-
KAMLESH KUMAR MAURYA
High Court of Judicature at Allahabad
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