Court Cannot Compel Plaintiff to Continue Suit Where No Liberty to File Fresh Suit is Sought: Bombay High Court

In a significant judgment concerning the scope of Order 6 Rule 17, Order 8 Rule 6-A, and Order 23 Rule 1 of the Code of Civil Procedure, 1908, the Bombay High Court has ruled that a plaintiff has an absolute right to abandon or withdraw a suit or part thereof, and that a counter-claim primarily targeting a co-defendant is not legally maintainable under CPC.

Justice N. J. Jamadar setting aside the common order dated 18 December 2023 passed by the Civil Judge, Panvel, which had erroneously refused to allow the plaintiffs to delete Defendant No. 5 and suit Plot No. 73 after an out-of-court settlement, and had wrongly permitted Defendant Nos. 1 to 4 to amend their written statement and file a counter-claim seeking ₹1.61 crores from Defendant No. 5.

The Court ruled:

“The Court cannot compel a plaintiff to continue to prosecute a suit against his wish. The principle of dominus litis finds its application in the provisions contained in Order XXIII Rule 1(1) of the Code.”

 “Counter-Claim Must Be Against Plaintiff — Cannot Be Used As A Cloak To Sue Co-Defendant”

The underlying suit involved claims of partition and declaration in relation to ancestral property, which included Plot No. 73 at Ulwe Node, Navi Mumbai, allotted under the 12.5% CIDCO scheme. The plaintiffs, legal heirs of one of the daughters of Late Narayan Hari Naik, sought partition of the ancestral properties.

After an amicable settlement between the plaintiffs and Defendant No. 5 (Mr. Chirag Bhanushali), the plaintiffs filed an application to delete Defendant No. 5 from the suit and abandon their claim in respect of Plot No. 73. However, Defendant Nos. 1 to 4, who were brothers of the plaintiffs' predecessor, objected and filed a counter-claim against Defendant No. 5, seeking recovery of ₹1.61 crore, alleging breach of a 2008 tripartite agreement.

Justice Jamadar, rejecting the Trial Court’s approval of the counter-claim, held:

“A counter-claim has necessarily to be directed against the plaintiff. The provisions contained in Order VIII Rule 6-A cannot be resorted to by one defendant to file a counter-claim solely against a co-defendant.”

Counter-Claim Was “A Subterfuge” to Target Co-Defendant — Plaintiffs Not Party to Transaction

The High Court observed that the counter-claim had no real basis against the plaintiffs, and was essentially a tactic to sustain an otherwise impermissible claim against Defendant No. 5, who had already settled with the plaintiffs.

“The counter-claim against the plaintiff appears to be a subterfuge to sustain the counter-claim against the Defendant No. 5, which would not have been otherwise tenable,” the Court held, adding that the declaratory relief sought against the plaintiffs was bald and devoid of consequential substance.

The plaintiffs were not party to the 2008 agreement giving rise to the monetary claim, nor was there any nexus between the claim of ₹1.61 crore and any cause of action against the plaintiffs.

Withdrawal of Suit or Part Thereof is an Absolute Right Under Order 23 Rule 1 CPC

Allowing the plaintiffs’ application to delete Defendant No. 5 and the suit plot from the plaint, the Court clarified the scope of Order 23 Rule 1 CPC, holding:

“Under Order XXIII Rule 1(1), a plaintiff may, at any time after the institution of a suit, abandon the suit or part of the claim unconditionally as a matter of right. The Court’s permission is not required unless liberty to file a fresh suit is sought.”

The judgment reaffirmed that in a case of unconditional abandonment, the Court has no discretion to deny the plaintiff’s prayer to delete a party or part of the suit.

Referring to the Supreme Court decision in K. S. Bhoopathy v. Kokila, (2000) 5 SCC 458, the High Court quoted:

“Neither can the plaintiff abandon a suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit.”

Trial Court Committed Jurisdictional Error by Permitting Counter-Claim and Denying Withdrawal

The High Court found the Trial Court's reasoning fundamentally flawed. The Civil Judge had held that since a counter-claim had been filed against Defendant No. 5, the plaintiffs could not be permitted to withdraw their suit against him. This, the High Court said, was unsustainable.

“The learned Civil Judge did not examine the issue in the correct perspective. As the primary object of the proposed amendment was to set up a counter-claim against the co-defendant, which is not tenable in law, the amendment ought not to have been permitted.”

Justice Jamadar also rejected the argument that allowing the plaintiffs to abandon the suit would lead to multiplicity of proceedings, stating that statutory limitations on counter-claims cannot be bypassed in the name of procedural convenience.

No Liberal Standards Where Counter-Claim Is Legally Barred

The High Court further held that the liberal approach towards amendments of written statements does not extend to claims that are impermissible under law. Relying on Usha Balasaheb Swami v. Kiran Appaso Swami, (2007) 5 SCC 602, the Court noted:

“Liberal standards for amendment of written statement do not justify allowing a counter-claim that is legally barred.”

Moreover, the Court observed that the counter-claim was belated, being filed nearly 15 years after the agreement and only after settlement talks between the plaintiffs and Defendant No. 5 were finalised — an indication of mala fide intent.

Trial Court's Order Set Aside; Plaintiffs Allowed to Delete Defendant No. 5 and Suit Plot

Allowing all three writ petitions, the Bombay High Court issued the following directions:

• “The impugned common order on applications (Exh. 76 and 89) stands quashed and set aside.”
• “The plaintiffs’ application for amendment to delete Defendant No. 5 and suit plot is allowed.”
• “The application by Defendant Nos. 1 to 4 seeking amendment of written statement and permission to file counter-claim is rejected.”
• “Plaintiffs to carry out the necessary amendment within three weeks.”

The Court made the Rule absolute and imposed no order as to costs.

A Landmark On Scope of Counter-Claims and Plaintiff’s Right to Abandon Suit

This judgment is a notable reaffirmation of fundamental civil procedure principles:

• The plaintiff is dominus litis and has unfettered right to withdraw or abandon the suit or part thereof under Order 23 Rule 1(1) CPC.
• A counter-claim must be directed against the plaintiff, not co-defendants, and cannot be camouflaged to sustain an otherwise impermissible claim.
• Courts must not allow counter-claims that are legally unsustainable, merely to avoid multiplicity of litigation.
• Liberal standards of pleadings do not override statutory limitations.

By quashing a counter-claim that sought to weaponize procedural devices to press private financial claims under the guise of a partition suit, the Bombay High Court has fortified the boundaries between civil rights enforcement and procedural abuse.

Date of Decision: 06 January 2026