Order XXIII Rule 1(1) of the Code of Civil Procedure, 1908 – Right to Withdraw Suit or Abandon Part of Claim – Appellate Stage – Effect of Trial Court's Adjudication – Prejudice to Defendant – Principles Governing Withdrawal

Once a decree is passed, the rights and obligations of the parties are crystallized. The plaintiff cannot, at the appellate stage, abandon part of the claim if it nullifies the trial court’s findings. A plaintiff’s right under Order XXIII Rule 1(1) CPC is not absolute at the appellate stage, as it may affect vested rights of the defendant. Where declaratory relief forms the basis of consequential relief, abandonment of the former cannot be permitted while retaining the latter.

The High Court dismissed the writ petition, upholding the District Judge’s order refusing permission to abandon the declaration claim at the appellate stage.

Major Acts and Sections Discussed:

• Code of Civil Procedure, 1908 (CPC) – Order XXIII Rule 1(1), (3), (4) – Right of Plaintiff to Withdraw Suit or Abandon Part of Claim – Discretion of Court in Granting Permission at Appellate Stage
• Contract Act, 1872 – Principles Governing Employer-Employee Relationship – Personal Service Contract
• Specific Relief Act, 1963 – Section 34 – Declaratory Relief – Section 38 – Injunction as Consequential Relief

Subjects:
Withdrawal of Suit – Abandonment of Claim – Appellate Stage – Decree Rights – Prejudice to Defendant – Personal Service Contract – Declaration and Mandatory Injunction

Nature of Litigation:
Writ petition under Article 226 of the Constitution of India challenging the order of the District Judge, Kolhapur, which rejected the petitioner's request to abandon part of the declaration claim in a pending appeal.

Relief Sought:
The petitioner sought permission to withdraw the prayer for a declaration that he remained an employee of the respondent company while retaining the prayer for a mandatory injunction directing payment of salary.

Reason for Filing the Case:
The trial court dismissed the petitioner's claim for a declaration of employment and salary continuation beyond March 2004. The petitioner, during the pendency of the appeal, attempted to abandon part of the declaration claim, which was rejected by the District Judge.

Prior Decisions:

• Trial Court partially decreed the suit, granting recovery of salary arrears up to March 2004 but rejecting the claim for continued employment and future salary.
• District Court refused to permit abandonment of part of the declaration claim, reasoning that it would prejudice the defendant.

Issues:
a) Whether the plaintiff had an absolute right under Order XXIII Rule 1(1) CPC to abandon part of the claim at the appellate stage.
b) Whether the abandonment of the declaration claim would prejudice the defendant by nullifying the trial court’s findings.
c) Whether the relief of mandatory injunction could be sustained independently of the declaration of employment.

Submissions/Arguments:

• Petitioner’s Counsel:
  i) Plaintiff had an unqualified right to abandon part of his claim.
  ii) Order XXIII Rule 1(1) CPC permitted unconditional withdrawal without defendant’s objection.
  iii) Abandonment would not change the nature of the suit.

• Respondent’s Counsel:
  i) Abandonment at the appellate stage could not be permitted as a matter of right.
  ii) Trial court’s findings had crystallized the rights of the defendant.
  iii) Withdrawal of the declaration claim was a strategic move to nullify the trial court's adverse finding.