Withdrawal of Suit
Code of Civil Procedure (V of 1908)
Order XXIII, rules 1 & 2
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 plaintiff under normal ordinary circumstances and the interest of justice the requires that such permission should be granted. Bangladesh vs Babor Ali [73 DLR (AD) 3]
Code of Civil Procedure (V of 1908)
Order VI, rules 17 read with Order XXIII, rules 1 & 2
Plea does not stand to reason because the wrong statements made in the plaint can be corrected by way of amendment which will not change the nature and character of the suit. The plaintiffs may also pray for consequential relief by way of amendment on payment of advalorem court fee and for addition of such relief, withdrawal of the suit and appeal with the permission to sue afresh is not at all necessary. Bangladesh vs Babor Ali [73 DLR (AD) 4]
It is pertinent to mention that the established principle of law is that once a judgment is delivered by a competent Court and signed by the learned Judge, the said Judge becomes functus officio. He cannot entertain any application other than for correcting an arithmetical or clerical error. It is also well settled that an executing Court cannot go beyond the decree and the executing Court cannot amend the decree without an order passed by the appellate Court, except correction of clerical and arithmetical mistake and an amendment under section 153 of the Code of Civil Procedure cannot be allowed when it alters the real matter in controversy between the parties. [73 DLR (AD) 233]
The Court may at any time correct any clerical or arithmetical mistake in the judgment, decree or orders or accidental errors arising therefrom either on its own motion or on the application of a party, but an amendment of a substantial nature, or amendment of the plaint is beyond the scope of this section. If the decree or order is sought to be varied for any reason other than clerical error or arithmetical mistake, it can be done only by way of review or by appeal. A Court apart from section 152 by virtue of its inherent power can alter or vary the order and the decree, but the Court must bring the amendment of the decree in conformity with and to harmonies the decree with the judgment. (Ismailullah vs Sukumar, 1986 BLD (AD) 251 = 38 DLR (AD) 125). But the amendment made by the Court by striking out some schedules from the plaint as well as from the decree was in no way done according to the provision of law. Nonetheless, the Court allowed the petition for amendment of decree vide order No.310 dated 18-5-2010 and as a result it was in violation of the provision of law and the decision of the apex Court. Such order was totally erroneous and the revisional Court's order upholding the same was equally erroneous. [73 DLR (AD) 233]
