Civil Procedure Code, 1908 (V of 1908) S. 107(2), Order 23, Rule 1(3)
- Suit for declaration - Court dismissed the suit - Appellate Court has accepted the request and allowed the plaintiff to withdraw the suit - Order does not appear to completely bar or
foreclose a fresh action at the hands of the unsuccessful plaintiff since the trial Court records that the withdrawal of the suit by the plaintiff "at this stage" would not cause any harm or
detriment to the defendant - Impugned order is not found sustainable - Court however if it bars institution of a new suit by permitting withdrawal of the suit in appeal it would consider
quantifying costs to be paid to the defendants when the withdrawal is without permission under Order 23 Rule 1(3) of the Code - Such costs would need to be realistic in terms of actual
expenses incurred by the defendant towards litigation costs defending a frivolous suit, by accounting for expenses incurred in production of witnesses, documents etc. in defence of the suit,
apart from travel costs to and fro, court fee paid and other sundry out of pocket expenses incurred and therefore compensatory cost as assessed by the trial court. (177) P.L.R.