Q. What do you mean by Abatement and Withdrawal of suits? Explain.

And. Abatement of a Suit

Abatement is the premature ending of a suit before final adjudication.  Abatement of a suit can
happen under various grounds.  A defendant can plead to abate the suit by claiming one of the
grounds of abatement.  When a suit is abated it may be abated temporarily, or permanently. 
Ultimate goal of a court through abatement is to prevent unnecessary wastage of time and
expense of the court.
Provisions of Order 22 of Code of Civil Procedure deals with creation, assignment or devolution
of interest during pendency of suit as well as appeal but not execution proceedings due to death,
marriage or insolvency of parties.
Some of the various grounds of abatement are:
1. Death of a party.
It is a common law rule that all suits and actions must be prosecuted by and against living
parties.  One of the parties’ death can result in abatement of a suit, if there is no right of
surviving interest on the heirs of the dead over the issue in dispute.  However, a suit can be
revived if the heirs have a right of action over the dispute.
2. On premature commencement of action.
An action cannot be initiated in a court without the cause of action of the suit starting to run. 
When a suit is filed prematurely, the defendant to the suit can plead pre-maturity of the suit as a
defense in the answer.  In the absence of such a plea by the defendant the court will consider the
defense as waived.  However, when a case is against a public official in his/her official capacity
the case will not be abated on death or retirement.  It will continue against the successors to the
office.
1. When another case is pending on the same issue between the same parties.
A plaintiff is not authorized to ignore a previous action and bring a second independent action on
the same facts while the original action is pending.  A second action based on the same cause is
generally abated.  Following are the elements required for abating a second suit on the same facts
a) where there is a previous action pending in a court of competent jurisdiction;
b) within the same state or jurisdictional territory;
However, the second suit can be an effective one, if the first action was discontinued without
proper adjudication and if the discontinuation was properly notified.
2. When the interest of the person in the case has changed or is transferred to another
person.
Common law rule is that when the interest of a person in the subject matter in dispute is changed
or transferred to another person the suit abates.  However, now-a-days in many of the states rules
have changed.  Hence, when there is a transfer of interest while a suit is pending, the action does
not abate.  It may be continued in the name of the original party, for the benefit of the assignee or
transferee.  Otherwise, the assignee may be substituted for the original party.  These changes
depend on the law of each state.  In Ga. Power Co. v. Hun[1], the power company sought a
mandatory injunction to order the property owner to remove light poles.  While the case was
pending, the property owner transferred the property to a third party.  The power company did
not join the transferee as a party defendant, nor did it seek to substitute the transferee for the
property owner.  The property owner contended that he had transferred his interest in the
property.  The court found that if a mandatory injunction was granted, the property owner will
have to enter the land of another and remove fixtures.  Hence, the court held that the action could
not be continued because the power company failed to substitute parties and the action against
the property owner was dismissed.
Generally an action does not abate due to the appointment of a receiver for one of the parties
when he turns insolvent.

Withdrawal of the suit 

The withdrawal and compromise of a civil suit is provided by Order 23 of the Code of Civil
Procedure, 1908.[1] There are two types of withdrawal provide by it. Those are:
Absolute withdrawal: In this form of withdrawal, the leave of the Court is not needed; and
Qualified withdrawal: In this the leave of the Court is needed.
1. Withdrawal without the leave of the court
After the institution of a suit, the Plaintiff may at any point of time withdraw his claim or suit
against any one or all the defendants without the need of taking a leave from the court. This is
provide by Rule 1 (1) of Order 23 of the Code of Civil Procedure, 1908.[2] This right to
withdraw a suit against one or all the defendants is an Absolute right and not a Qualified Right.
If the plaintiff does not want to proceed with its suit, the Court cannot compel the Plaintiff to
continue.[3]

This is based upon the principle of Invitobeneficium non datur it means that the law cannot
confer a benefit to a man which he does not desire.[4] It would go against the wishes of the
Plaintiff and would eventually lead to wastage of the Court’s time. However if for once the
Plaintiff withdraws its case then he or she would never be able to file a new suit in respect of the
same cause of action against the same party or parties.[5] Also while withdrawing the suit, if the
Court awards any cost to the defendant, then the Plaintiff would have to bear it.
2. Withdrawal with leave of court
Rule 1(3) of Order 23 of the Code of Civil Procedure, 1908 allows withdrawal of suit with the
leave of the court. If the court feels that the suit is having some formal defects and it must fails or
if the court gets sufficient grounds to allow the plaintiff to institute a new fresh suit for the whole
suit or any one subject matter of the suit.
The word, formal defect has not been defined under the Code but it connotes any procedural
defect which does not affect the merits of the case.[6] The formal defect may include mis –
joinder of parties, not providing proper statutory notice, non – payment of proper court fees,
etc.[7] Errors such as non – joinder of necessary parties, not including all the cause of actions,
non – examination of material witnesses, etc. does not fall under the category of formal defects
as they constitutes a material defect which affects the merits of the case.[8] The error should not
cause any material defect.

The term sufficient grounds should not be construed same as the term formal defect. If there is an
issue where the decree passed by the court cannot be executed because of no one’s fault, if
two suits had been filed for the same cause of action and due to a fault, both the suits were
withdrawn, omission to file the Power of Attorney, etc are some of the examples which falls
under the category of sufficient grounds.[9]

The Court also has the power to grant leave. The grant of leave is done when the parties ask for it
or if the court finds sufficient grounds the court may grant leave sue moto.
3. Suits by minor
If in any suit, the plaintiff is a minor, then, neither the suit, nor any part of the claim can be
withdrawn without the permission of the Court. This has been provided by the Amendment Act
of 1976. According to Sub Rule 2 of Rule 1 of Order 23 of the Code of Civil Procedure, 1908, if
the plaintiff asks for a leave from the Court where the plaintiff is a minor, then the application
must be attached with an affidavit of the next best friend of the minor. If a pleader is representing
the minor in the Court, then the pleader also must submit a certificate certifying that the need of
leave is for the benefit of the minor.[10]
4. Limitation
If the plaintiff withdraws his suit with his own free will, to file a fresh suit, then the plaintiff
needs to file the fresh suit within the limitation period. This is provided under Rule 2 of Order 23
of the Code of Civil Procedure, 1908.