Key Provisions of Order 23 CPC
Order XXIII rule 1-
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.
Order XXIII rule l Order XLI rule 23-
The appellate Court cannot direct the trial Court on remand to consider the application for withdrawal of the suitafter the suit had already been decreed bytl’le trial Court. In allowing the application the trial Court must come to a finding that the suit suffers from formal defect.
Pradip Kumar Malakar vs Birendra Chandra Malakar 45 DLR 422.
Order XXIII rules 1 & 2-
The plaintiff is at liberty to withdraw his suit at any stage without any permission from the Court and he needs permission for withdrawal only when he wants to sue afresh on the same cause of action.
Shyamal Chandra Roy vs Probhat Chandra Roy 51 DLR 504.
Order XXIII(1)(2)-
There is no legal bar in granting an application for withdrawal of a suit with liberty to file a suit afresh on the self-same matter even at the revisional stage provided the other requirements of the. law are complied with.
Mustafa Kabir Uddin Ahmed vs Badrun Nessa Chowdhury 54 DLR 416.
Order XXIII rules 1 & 2(a)(b)-
The court may allow withdrawal of suit if it is satisfied that the suit must fail by reason of some formal defects or there are sufficient other grounds.
Sk Abul Kashem vs Abdus Samad Biswas 51 DLR 70.
Order XXIII rule 1(1)-
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 An order of setting aside of judgments and decrees in the suit withdrawn should naturally follow.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.
Order XXIII rule 1(2)-
Where the trial Court dismissed the suit. not only on formal defects but also for want of merit in the plaintiff’s case, permission to withdraw the suit with liberty to sue afresh on the same subject matter is not contemplated in law.
Habibur Rahman Paikar (Md) vs Gour Gopal Datta and others 51 DLR 54.
Order XXIII rule 1(2)-
Petition under Orders XXIII, rule 1(2) for withdrawal of suitCourt to decide whether there is any formal defect or sufficient ground-If there is none, duty of the court is to reject the application-But if it allows withdrawal, leave to bring a fresh suit cannot be refused.
There is no dispute whatsoever and the legal position is very much clear that without any formal defect or sufficient ground the prayer for withdrawal with permission to sue afresh cannot be allowed. It is now well settled as held in 5 DLR 89 that the first thing that the Court has to decide is whether there is any formal defect or sufficient ground for which the withdrawal should be allowed. If however there is no such defect or ground the clear duty of the Court is to reject the application. But if it allows withdrawal it cannot refuse leave to bring a fresh suit, for the obvious reason that the sole purpose for which the withdrawal is sought is to institute a suit afresh.
The application for permission to withdraw from the suit and to file a fresh suit on the same cause of action is to be regarded as one indivisible whole, and it is not open to the permission to bring a fresh suit.
Shahabuddin Ahmed vs Upazila Election Officer 41 DLR 168.
Order XXIll rule 1(2)-
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.
Order XXIII rule 1(2)-
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.
Abdur Rahman vs Abdul Mabin 46 DLR 246.
Order XXIII rule 1 (1)(2)(3)(4)-
Whether the right of withdrawal of a plaintiff from the suit is dependent on the consent of the other plaintiffs.
Kumud Behari Majumdar vs Nirmal Krishna Majumdar 40 DLR 415.
Order XXIII rule 1(3)-
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.
Order XXIII rule 1(4)-
Controlling power of sub-rule ( 4) of rule l of Order XXIII. Is sub-rule (1) of rule 1 independent of other sub-rules? Apart from the controlling power under sub-rule (4) whether the court has any power to impose restriction upon the right of one or more of the several plaintiffs to withdraw from the suit without the consent of others or in spite of such restriction as imposed under sub-rule (4) of rule 1 of Order XXIII, the court can exercise the inherent power to make appropriate order in the interest of justice. Is sub-rule 1 of rule 1 independent?
Kumud Behari Majumdar vs Nirmal Krishna Majumdar 40 DLR 415.
Order XXIII rule 1(4)-
In spite of controlling powers as reserved in sub-rule (4), the Court has inherent right to exercise powers in passing appropriate orders in all cases if the interests of justice so demand.
Kumud Behari Majumdar vs Nirmal Krishna Majumdar 40 DLR 415.
Order XXIII rule 1(4)-
Whether withdrawal of the plaintiff from the suit on behalf of himself and all others by virtue of a Power of Attorney is permissible under law-Whether the order passed allowing the suit to be dismissed for ·non-prosecution on the basis of solenama on the application of one proforma defendantlplaintiff would be hit by provisions of Order XXIII, rule 1, sub-rule (4).
Tamijul Haque vs Yunus Ali (Md) 42 DLR234.
Order XXIII rule 1(4)-
Withdrawal of coplaintiff from the suit-The Court can exercise the inherent power to make appropriate order in the interest of justice.
A co-plaintiff, if he has a separate cause of action, can always be allowed to withdraw without affecting the rights of other coplaintiffs-withdrawing plaintiff needs be transposed as proforma defendant in order to avoid the suit being dismissed for defect of parties.
Suresh Majumder vs Govt of Bangladesh 42 DLR JO.
Order XXIII rule 3-
Solenama remaining in possession of the defendant for about 4 years with no explanation why it was not filed in court, nor was any prayer ever made during this time for recording the solenama. This shows solenama was not acted upon.
The normal course in respect of a compromise is that whenever any compromise is made between the parties during the pendency of a suit, then the plaintiff or any other party does not proceed with the suit but that they file a compromse-petition with a joint-prayer through their lawyers for recording the solenama and then the proceeding of the suit shall stop there. But in this case, it appears that not only the plaintiff proceeded with the suit but also the defendant No. 2 (appellant) contested the suit all through till the date of final hearing on 31.1.90. Thiruvengada Mudaliar vs Thaugavelu Mudaliar and others AIR 1928 (Mad) 594 & AIR 1934 Pat 582 held not applicable.
AFM Safiyyullah vs AKM Bashirullah 46 DLR 146.
Order XXIII rule 3-
When parties to a suit compromise their dispute in consideration of something not covered by the subject matter of the suit such consideration forming a stipulation in the petition of compromise cannot be effective part of the compromise decree but such stipulation being part of a valid contract can be enforced by a separate suit, though not by putting the decree into execution.
Fazlu Molla vs Shamsul Hoque Molla 45 DLR 299.
Order XXIII rule 3 and Order XLIII rule 1(m)-
In a case where decree has been passed in pursuance of an order recording compromise, there can be an appeal against the order itself and the decree drawn in pursuance to the said order will not be a bar to the right of appeal given under Order XLIII, rule 1(m) of the CPC.
Abdul Khaleque vs Siddiqur Rahman 42 DLR 29.
Order XXIII rule 3 and Order XLIII rule 1(m)-
Where compromise not denied and nothing to show the same was unlawful-Court has no option but to pass a decree on compromise.
Abdul Khaleque vs Siddiqur Rahman 42 DLR 29.
Order XXV rule 1-
The object of Order XXV, rule 1 CPC is to protect the defendant in cases where in the event of success he may face difficulty in realising the cost of suit-The Court can, either on an application by the defendant or of its own motion on a finding that the plaintiff or plaintiffs have no immovable property in Bangladesh other than the property in the suit, pass an order directing the plaintiff or plaintiffs to furnish security or costs.
Ratan Krishna Ghose vs Rafique Miah 40 DLR 303.
Order XXV rule I, Order XXXVIII rule 5 & Order XLI rule 5-
For mere non including of the properties in the security, the same cannot be brushed aside or rejected.
Mr Sikder vs. Bangladesh Water Development Board 49 DLR 113.
Order XXVI rule 9-
A court can order local investigation for the purpose of elucidating any matter in dispute, if it deems such investigation necessary.
A reference to Order XXVI, rule 9 shows that local investigation can be ordered for the purpose of elucidating any matter in dispute in which the court deems that the local investigation is necessary. According to the plaintiff, he has title in the suit land and he has been illegally dispossessed by the defendant. The defendants also assert that the plaintiffs land is 200 yards away from the land of the defendant. This is really a matter of evidence and the trial Court will decide that in pursuance of the evidence both oral and documentary that will come up at the stage of trial.
Maulana Abdul Matin vs Shah Alam Bhuiyan 41 DLR 243.
Order XXVI rule 9-
A matter which can be decided by evidence cannot be subject-matter of local investigation.
Maulana Abdul Matin vs Shah Alam Bhuiyan 41 DLR 243.
Order XXVI rule 9-
Plaintiff described his land by giving boundary-Defendants in WS asserted that lands claimed by the plaintiff are not the same land as claimed by the defendant-Local investigation not necessary. Maulana Abdul Matin vs Shah Alam Bhuiyan 41DLR243.
Order XXVI rule 9-
Local investigation
Further commission-Since the court will be in a position to determine the disputed point on the basis of the investigation done at the instance of the plaintiffs and other materials on record, further commission is redundant.
Md Emdaduddin Sheikh vs Atiqur Rahman 42 DLR 416.
Order XXVI rule 9-
Local investigation
Discretion-It is not to be fanciful-The Court has discretion in passing order allowing or not allowing a Pleader Commissioner but the discretion is to be judicious and not fanciful. The refusal of local investigation was perhaps for avoiding delay in disposal of the proceeding but it has actually been lingered because of the impugned order which could, be avoided by allowing the prayer for local investigation as warranted by the facts.
Kazi Abdul Awai Zewar Rashid vs DMC 45 DLR 509.
Order XXVI rule 9-
In the absence of any pleading, evidence or application it is not the businesses of the Court to appoint an Advocate Commissioner for holding local investigation.
Abdul Kader Mondal and others vs Akbor Mondal and others 47 DLR 237.
Order XXVI rule 9-
The trial Court is not correct in rejecting the report of the Advocate Commissioner simply saying that some irrelevant things have been stated in the report-irrelevant things if any, could be deleted and at the time of trial objection could be raised against the report.
Jahanara Begum and others vs Azizul Islam (Kanchon) and others 47 DLR 587.
Order XXVI rule 9-
If identity of the suit property is not challenged by the other side, the question of holding local investigation relaying the property does not arise.
Lakshmi Bazar Shahi Masjid Committee and another vs St Francis Xavier’s Girls High School 51 DLR 557.
Order XXVI rule 9-
The report of the Advocate Commissioner is neither substantive nor conclusive evidence. The Court will consider the report in the light of other evidence that may be given by the contesting parties.
Khondker Abdul Majed vs Tarapada Dey 51 DLR 336.
Order XXVI rule 9-
The Court was required to dispose of the Local Investigation matter whether he would reject the same or accept before posting the suit for peremptory hearing.
Ismail (Md) vs Motasim Ali Chowdhury 53 DLR 190.
Order XXVI rule 9-
When the trial Court does not find local investigation necessary for deciding a suit and rejects the prayer for local investigation on assigning reasons a superior Court cannot impose it on the trial Court.
Nadera Banu vs Protiva Rani Sen Gupta and others 55 DLR 149.
Order XXVI rules 9 & 10-
The trial Court may expunge the relevant portion of the report about possession and may direct the Advocate Commissioner to resubmit his report according to law deleting the comment about possession of the parties which will be determined by the court after recording evidence.
Sufia Islam Shila and another vs Shakhawat Hossain 54 DLR 178.
Order XXVI rule 9 & Order XXXIX rule 7-
In the suit for permanent injunction the opposite parties having pleaded to have their structures on the suit land, local inspection at their instance was rightly allowed.
Abdur Rouf Chowdhury (Md) vs Abdul Hashem (Hashu) and another 53 DLR 458.
Order XXVI rule 9 & Order XXXIX rule 7-
Whether or not the defendants violated the injunction order is the pertinent issue to be determined by the Court itself in the proceeding against violation case the Court cannot delegate its power to any person. In the proceeding pending against violation of an order of injunction the plaintiff would have ample opportunity to prove his case by evidence. The Joint District Judge acted illegally in ordering inspection in the case by impugned order.
Arif Iftekhar Ali and others vs Sekandar Ali Hawlader 56 DLR 82.
Order XXVI rule 10-
Commissioner’s report is to be evaluated in the facts of the case on the evidence adduced and the Court has wide discretion in such matter. Mere acceptance of the report should not give rise to any apprehension in the mind of the litigant.
Abul Quasem vs Md Lutfur Rahman 43 DLR (AD) 17.
Order XXVI rule 12-
The report itself of the Advocate Commissioner is not evidence but if the Commissioner deposes on oath before the court then the same is evidence.
Abdus Sattar (Md) and others vs Lalon Mazar Sharif and Seba Sadan Committee and others 56 DLR (AD) 180.
Order XXVI rule 14-
The purpose of section 4 is to see that a transferee outsider does not force his way into a dwelling house in which other members of the transferor’s family have right to live. Once the partition decree is made in preliminary form, the rest is for the Commissioner. But the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition.
The Court can only give a limited direction after perusing the Commissioner’s report as to which plot is to be partitioned.
Sree Jugal Kishori Sarker vs Azizur Rahman 40 DLR (AD) I 50.
Order XXVI rule 17-
Amendment basically relating to quantum of damages will not change the nature and character of the suit and therefore it could be allowed.
Dula Meah Cotton Spinning Mills Ltd, and another vs MV Mehedinta and others 47 DLR 551.
Order XXVII rules 1 and 2-
The Government by a Notification dated 14th December 1955 authorised the Military Estate Officer as specified in the Schedule of the said Notification, to sign and verify the plaint or written statement in a suit by or against the Government. Deputy Commissioner not authorised to sign the plaint or written statement and when he does it, the Court must ignore it and proceed as if no plaint or WS has been filed.
Maqsood Alam vs People’s Republic of Bangladesh 38 DLR (AD) 290.
Order XXVII rules 1 and 2-
Specific provisions having been made in rule I Order XXVII CPC as to the person who is authorised to sign a plaint or written statement on behalf of the Government, provisions in rule 2 of Order 27, have no application in such matters. Provisions of rule 2 are applicable to circumstances not covered by specific provisions made in rule 1 of Order XXVII.
Maqsood Alam vs The People’s Republic of Bangladesh 38 DLR (AD) 290.
Order XXXII rule 3-
The order of remand made by the Subordinate Judge in the circumstances of the case should not have been sustained by the High Court Division.
Sukumar Sen vs Gouranga Bejoy Dey 42 DLR (AD) 18.
Order XXXII rule 3-
The duty of the guardian ad /item continues throughout the execution proceeding. By the grossly negligent act of the guardian the minors had suffered substantial injury. Their appeal is therefore allowed and the suit decreed.
Rekha Datta vs Chittagong Urban Co-operative Bank 46 DLR (AD) 133.
Order XXIX rule 1-
The Managing Director of the plaintiff-company has the legal authority to sign the plaint and the verification to the plaint, whether or not the Managing Director has been so authorised by the Articles of Association of the Company.
Doon Valley Rice Limted vs MV Yue Yang and others 48 DLR 531.
Order XXIX rules 1 and 2-
Claim of legal obligation in support of injunction-The legal right as claimed by the plaintiff under the cover of registration of their trade union is similarly being enjoyed by the defendants under cover of valid registration of their trade union. It cannot therefore be said either trade union is under any obligation to be restrained by any order of injunction.
Badsha Miah vs Tofael Ahmed Chowdhury 42 DLR 504.
Order XXXII rule 3-
Appointment of guardian by court for minor defendants is mandatory, but its non-compliance in a case where minor has not been prejudiced does not render the whole proceeding of the suit including the passing of the decree against others a nullity. The minor defendants were proforma ones against whom no decree was sought.
Sukumar Sen vs Gouranga Bejoy Dey 42 DLR (AD) 18.
Order XXXII rule 3-
In this case a Court guardian was appointed at the appellate stage, and he after corresponding with natural guardian of the said minors and perusal of the record submitted a report in court that the minors had no subsisting interest-That being the position there could be no necessity for sending the case back to the trial Court for the purpose of appointing a guardian for the minors in the suit and to try the suit again-The minor defendants filed a sworn petition in the High Court Division stating that they had no interest in the original suit.
Sukumar Sen vs Gouranga Bejoy Dey 42 DLR (AD) 18.
Order XXXII rules 6 & 7-
A suit in which a plaintiff is minor cannot be compromised without leave of the Court.
Kalitara Biswas vs Mrinal Kanti Biswas 39 DLR (AD) 216.
Order XXXII rule 15-
The court has to make inquiry and satisfy itself as to whether the person Azizur Rahman is of unsound mind and to settle the issue has to take assistance of a doctor.
Azizur Rahman vs Mariamunnessa and others 54 DLR 108.
Order XXXIII rule 1(2)(3)-
Withdrawal of suit and question of preclusion from instituting a fresh suit-A plaintiff must be seen in the position of filing a second suit after actual withdrawal of first suit without obtaining permission to sue afresh. If he is not caught in this position then the bar of this provision is not attracted.
Gouri Rani Dutta vs Taib Ali 43 DLR 13.
Order XXXIV rules 2, 7 and 11-
Suit for recovery of money by sale of mortgaged goodsDecree without interest whether needs interference-The Commercial Court rightly took the view that the defendant company was unable to pay any interest. The awarding of interest on the decretal amount is purely a matter of discretion of the Court. The Commercial Court exercised its discretion in refusing interest on the valid ground that the company failed to run their business.
Sonali Bank vs Messrs Begg and Beg Jute Incorporated 43 DLR 27.