Order XXIII Rule 2 CPC - Limitation Law Not Affected by First Suit
Order 23 Rule 2 of the Code of Civil Procedure, 1908 (CPC) explains how limitation applies when a plaintiff withdraws a civil suit with the court's permission to institute a fresh suit. Permission to file again does not, by itself, extend or restart the limitation period.
Text of Order XXIII Rule 2 CPC
In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.
Source: Code of Civil Procedure, 1908 - official India Code text (PDF).
Meaning and legal effect
The rule concerns a fresh suit brought after the court grants permission under Order XXIII Rule 1(3) CPC. The limitation period is assessed under the applicable limitation law as though the original suit had not been filed, subject to any statutory exclusion or other applicable rule of limitation.
- Withdrawal with liberty: The court may permit withdrawal with liberty to institute a fresh suit where a formal defect would cause the suit to fail or sufficient grounds exist under Rule 1(3).
- No automatic extension: Such permission does not guarantee that the subsequent suit will be within limitation.
- Separate limitation inquiry: The plaintiff must establish that the new suit is within time, accounting for any legally available exclusions.
- Withdrawal without liberty: Order XXIII Rule 1(4) separately restricts a fresh suit concerning the same subject matter where withdrawal occurs without the required permission.
Section 14 of the Limitation Act, 1963
Section 14(1) permits exclusion of time spent prosecuting another civil proceeding with due diligence and in good faith, involving the same matter in issue against the defendant, where the earlier court could not entertain the proceeding because of a defect of jurisdiction or another cause of a like nature.
Section 14(3) expressly provides that, notwithstanding Order XXIII Rule 2 CPC, the exclusion under Section 14(1) may apply to a fresh suit filed with permission under Rule 1 where that permission was granted because the earlier suit had to fail for a jurisdictional defect or a comparable cause. The conditions of Section 14 must still be satisfied.
Read the Limitation Act, 1963 - government-hosted statutory text (PDF), especially Sections 3 and 14.
Illustrative example
Suppose a plaintiff files a suit within the prescribed limitation period, later obtains permission to withdraw it, and files a fresh suit after that period has expired. The fresh suit is not saved merely because the first suit was filed on time or because liberty to sue again was granted. The plaintiff must identify a valid statutory basis, if any, for excluding time or otherwise establishing that the fresh suit is within limitation.
Practical points before withdrawing a suit
- Identify the limitation article and the date from which limitation begins to run.
- Check whether permission under Order XXIII Rule 1(3) is necessary and available.
- Determine whether the facts satisfy Section 14 of the Limitation Act, including good faith, due diligence and the jurisdictional or comparable defect.
- Keep the original pleadings, orders, filing dates and withdrawal order available for any subsequent limitation inquiry.
- Consider applicable local amendments and case-specific judicial decisions.
Frequently asked questions
Does withdrawal with liberty restart limitation?
No. Order XXIII Rule 2 does not restart limitation merely because the court allows a fresh suit.
Can time spent in the first suit be excluded?
It may be excluded where the requirements of Section 14 of the Limitation Act, 1963, or another applicable statutory provision are met. Exclusion is not automatic.
Is permission to file a fresh suit the same as a finding that it is within limitation?
No. The limitation issue must be determined independently under the applicable law.
Legal information based on the central statutory provisions. State amendments, special enactments and subsequent judicial interpretations may affect individual cases.