The Judgment of the Court was delivered by
Mukherjea, J.:— These two Rules are directed against certain orders of the Subordinate Judge, First Court, 2-Parganâs, made in Title Suit No. 53 of 1940 pending before him, by which permission was refused to the petitioners, who are some of the plaintiffs in that suit, to withdraw from it and to have their names struck off the record as parties plaintiffs. The suit was instituted by a large number of persons, who purported to be shebâits of a certain Deity known as Lakshmi Janardan Jiu, established by the Nandis of Jamgram in the district of Hooghly, and the defendants are all co-shebâits of the plaintiffs. The prayers in the plaint are of a two fold, character. The first prayer is for a declaration that the plaintiff No. 1 has been duly elected one of the managing shebâits of the Deity in place of defendant No. 1, who has been validly removed by the majority of the shebâits in accordance with the provisions of the deed of endowment. The second and the alternative prayer is for removal of defendant No. 1 as one of the managing shebâits, by the Court, if he has not been validly removed by his co-shebâits already, on grounds of misappropriation and breach of trust. On February 24, 1941, two of the plaintiffs, namely, plaintiffs Nos. 10 and 30 filed applications before the Subordinate Judge, praying for withdrawal of their names from the category of plaintiffs on the ground that they came to realise, during the progress of the suit, that a protracted litigation of this character was sure to ruin the debattar estate. On December 1, 1941 applications with identical prayers were made on behalf of plaintiffs Nos. 2 to 5 and 60 and 62. All these applications came up for hearing on January 7, 1942, and the Court, by its order, made on that date allowed the application of plaintiff No. 10 alone, which was not opposed by the other plaintiffs, and permitted him to withdraw from the suit as plaintiff and be added a party defendant. The applications of the other plaintiffs who were not present on that date were rejected, the Court being of opinion that such withdrawal could not be allowed without the consent of the remaining plaintiffs, whose interests were likely to be prejudiced by it. On April 30, 1942 afresh application was made by plaintiffs Nos. 2 to 5 and 60 and 62 practically for re-consideration of the order of dismissal made on January 7, 1942, and explaining the circumstances under which they were not able to appear and press their application on the date of hearing.
Another application was made by the plaintiff No. 63 and he too prayed for permission to withdraw from the suit as plaintiff and be made a party defendant, if necessary. Both these applications were rejected by the Court and the several plaintiffs who were not allowed to withdraw from the suit have now come up in revision to this Court.
These two substantial questions which arise for determination in these two Rules are: (1) whether O. XXIII, r. 1, sub-r. (4) of the Code of Civil Procedure governs a case like this and prevents some of the plaintiffs in a suit from withdrawing without the consent of the rest and (2) whether, apart from sub-r. (4) of O. XXIII, r. 1 of the Code of Civil Procedure, the Court is entitled, in the interests of justice; to refuse one of several plaintiffs to withdraw, or impose other-restriction on him, if such course is prejudicial to the interests of the other plaintiffs.
For determination of the first point, it is necessary to consider carefully the several provisions contained in O. XXIII, r. 1 of the Code of Civil Procedure, Sub-rule (1) gives the plaintiff a right to withdraw from a suit or abandon a portion of his claim against all or any of the defendants at any stage of the suit. This he can do of his own motion and no permission of the Court is necessary. If, however, he desires to withdraw from the suit, reserving a right to bring a suit on the same cause of action, he has got to seek the permission of the Court. This is provided for in sub-r. (2) of O. XXIII, r. 1 of the Code of Civil Procedure, which lays down the circumstances under, which alone such permission could be granted. Sub-rule (3) points out the consequences which would follow if the plaintiff withdraws from a suit or abandons part of his claim without the permission referred to in sub-r. (2). He shall be liable to pay such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Sub-rule (4) then provides as Follows:—
Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
It would be clear from the provisions, of sub-rr. (1) to (3) mentioned above that it is only when the plaintiff wants liberty to bring a fresh suit in respect of the same subject-matter that he is required to ask the permission of the Court as is provided for in sub-r. (2). If he does not want the liberty to institute a fresh suit nor seeks to avoid the consequences which sub-r. (3) imposes upon him he can withdraw the suit suo moto as laid down in sub-r. (1) without any permission from the Court. The question now is what would be the position, if there are several plaintiffs in a suit and one of them wants to withdraw from it. Under sub-r. (4) the Court has no authority to permit one of several plaintiffs to withdraw without the consent of the others.
In my opinion, Mr. Bose is right in his contention that the operation of sub-r. (4) is confined to cases where permission of the Court is necessary in order to enable the plaintiff to withdraw from all suit; or, in other words, it is applicable only when the plaintiff wants to have the liberty of instituting a fresh suit in respect of the same subject-matter. In such a case, express leave of the Court is necessary and even, if there are circumstances present which would justify the Court in granting leave under sub-r. (2), sub-r. (4) imposes a restraint upon its authority and prevents it from granting permission to one of several plaintiffs to withdraw from a suit if the other plaintiffs do not consent to this course. But if the withdrawing plaintiff does not want to reserve any right to renew the suit on his own account in future and is prepared to take the consequences indicated in sub-r. (3), it cannot be said that his right of withdrawal is dependent on the consent of the other plaintiffs. This was exactly the view taken in the case of Mohamaya Chowdhrain v. Durga Churn Shaha. In this case, a suit was instituted by two plaintiffs and, in the course of the suit, one of the plaintiffs whose name was Ram Kanai, sold his interest to one Chandra Mohan. After transferring his share, Ram Kanai intimated his withdrawal from the suit as plaintiff. The Court accepted the withdrawal but, as Chandra Mohan did not join as plaintiff, the suit had to be ultimately dismissed on the ground of defect of parties. On appeal, the Subordinate Judge held that under the third clause to s. 373 of the Code of Civil Procedure [which corresponds to sub-r. (4) of O. XXIII, r. 1 of the present Code] Ram Kanai could not withdraw from the suit without the consent of the remaining plaintiffs. The Subordinate Judge therefore treated Ram Kanai as still on record and remanded the case for retrial. Against this decision, a Second Appeal was taken to this Court and Morris and Tottenham, JJ. who heard the appeal reversed the decision of the lower Court. “It seems clear to us” so runs the judgment of the learned Judges that—
the Subordinate Judge has misunderstood the meaning of this clause,-which is that the Court can only authorise one of several plaintiffs to withdraw from a suit, with permission to renew the suit on his own account, by consent of the others. That any plaintiff can withdraw from a suit is manifest from the terms of cl. (2) of that section. But the result of so withdrawing, without the permission of the Court, is that he is precluded from bringing a fresh suit for the same matter.
It was held that Ram Kanai, having withdrawn from the suit unconditionally, there was no reason why the Court should not accept his withdrawal upon such terms as to costs or otherwise as it thought fit. But, as the remaining plaintiff was not competent to maintain the suit in the absence of Chandra Mohan, who refused to join as plaintiff, it was directed that Chandra Mohan should be made a co-defendant in the suit. I may say that I am in entire agreement with the interpretation put by the learned Judges upon this provision of the Code of Civil Procedure. It is true that sub-r. (1) was not in the old Code and was inserted for the first time in the Code of 1908. But that sub-rule does not create any new right. The right of the plaintiff to withdraw from a suit without the permission of the Court, when he did not want any liberty to institute a fresh suit, was implied in cl. 2 of s. 378 of the old Code which corresponds to sub-r. (3) of the present Code: vide Mahant Biharidasji Guru Govinddasji v. Parshotamdas Ramdas. Sub-rule (1) was added only the a view to make complete the enunciation of law relating to withdrawal of suits. The view take in the case of Mohamaya Chowdhrain v. Durga Churn Shaha (supra) was accepted by the Bombay High Court in Nilappagouda Goudappagouda v. Basangouda Sangangowda and it was held that under O. XXIII, r. 1 of the Code of Civil Procedure one of the appellants can withdraw from the appeal without the consent of his co-appellants. Fawcett, J. who was a party to this decision reserved his opinion on the point as to whether, apart from sub-r. (4), the Court has any powers to control a plaintiff who desires to withdraw from a suit if that would operate to the prejudice of his co-plaintiffs. But he agreed with Shaha, J. that sub-r. (4) had no application to these cases where the plaintiff did not want liberty to bring a fresh suit in respect of the same matter.
In a very recent decision of the Madras High Court, the same view has been taken by Krishnaswami Ayyangar, J. Vide Premji Tulsidas Sait v. P.S Sethuramaswami Iyer.
Dr. Sen Gupta who appears for the other plaintiffs has argued before us that sub-rr. (1) to (3) of r. 1 of O. XXIII, Civil Procedure Code, relate to cases where withdrawal with or without leave is sought for by the sole plaintiff or by all the plaintiffs together and that sub-r. (4) was inserted only to make it clear that one of several plaintiffs cannot withdraw with or without the permission of the Court unless the consent of his co-plaintiffs was obtained. I am inclined to agree with him that the expression “withdraw his suit”, as used in sub-r. (1), suggests that the word “plaintiff” in that sub-rule is intended to mean all the plaintiffs collectively if there were more, plaintiffs than one. But even if we accept this interpretation, that by itself would be of no assistance to Dr. Sen Gupta's clients. The result Will be that the withdrawal by one of several plaintiffs would be outside sub-r. (1) and sub-r. (4) would not control sub-r. (2) in any way. I do not think, however, that sub-rr. (2) and (3) are limited to cases where the application for withdrawal is made by the sole plaintiff or by all the plaintiffs together. The words “withdraw from the suit” as used in these sub-rules are wide enough to include a case where one of several plaintiffs withdraws and this was, expressly decided by our Court in Mohamaya Chowdhrain v. Durga Churn Shaha (supra) referred to above. In that case, as has been said already, it was held that quite apart from sub-r. (1), which was not then in the statute book, one of two plaintiffs could withdraw without the leave of the Court under the provision of cl. (2) of s. 373, which corresponds to sub-r. (3) in the present Code. It may be said that, after the addition of sub-r. (1) in the present Code, the right, of a plaintiff to withdraw from a suit without leave of the Court should be deemed to be regulated exclusively by that sub-rule. If that is so, then, according to the interpretation put upon sub-r. (1), one of several plaintiffs would have no right of unconditional withdrawal as laid down in that sub-rule. The right of a co-plaintiff to withdraw would then have to be regarded as a right outside the provision of sub-r. (1) and it may be an absolute right totally uncontrolled by the Court.
In my opinion, whatever view we might accept, when there is no question of seeking permission from the Court to institute a fresh suit on the same subject-matter, sub-r. (4), r. 1 of O. XXIII, Civil Procedure Code, which speaks of authorising the Court to permit one of several plaintiffs to withdraw, cannot have any possible application.
I will now refer to the principal cases which were relied upon by Dr. Sen Gupta in course of his arguments. In Mussammat Ram Dei v. Mussammat Baku Rani, two out of four plaintiffs, who instituted a suit for partition, withdrew from the suit with liberty to bring a fresh suit. When the fresh suit was brought, a question was raised as to whether it was maintainable in view of the provision of O. IXXIII, r. 1, Civil-Procedure Code. The learned Judges held that as sub-r. (4) of O. XXIII, r. 1, Civil Procedure Code, prohibits a Court to permit one of several plaintiffs to withdraw without the consent of others, the order of the Court granting leave to withdraw was without jurisdiction. But as the suit was one for partition, where the cause of action was a recurring one, the second suit was held not to be barred. Far from supporting the contention of Dr. Sen Gupta this decision clearly supports the other view, namely, that sub-r. (4) is applicable when, only one of several plaintiffs seeks permission of the Court to withdraw from the suit with liberty to institute a fresh suit in respect of the same matter. It is no authority for the proposition that sub-r. (4) would be attracted even if no such liberty is sought to be reserved.
The next case relied upon by Dr. Sen Gupta is that of Kali Charan Singha v. Mahammad Ismail Chowdhury. In this case, certain proceedings for settlement of fair and equitable rent were purported to be instituted on behalf of the entire body of landlords who were six in number. The plaintiff No. 5, Kiran Bala Debi, who was one of the landlords, subsequently filed an application before the Assistant Settlement Officer to have her name struck out from the list of plaintiffs, on the ground that the suits were instituted without her knowledge and consent. This application was allowed despite the objection of the other plaintiffs' and Kiran Bala was added as a pro forma defendant in all these suits. The Assistant Settlement Officer dismissed the suits on the ground that they were not maintainable in the absence of one of the joint londlords, under s. 188 of the Bengal Tenancy Act. The Special Judge, on appeal, confirmed this decision. On Second Appeal to this Court, additional evidence was taken as to the authority of the person who signed the name of Kiran Bala in the plaints and this Court was satisfied that the man had requisite authority to file plaints on her behalf. On this finding, the appeal was allowed and it was held by the learned Judges that, as the proceedings were started by all the landlords together, the mere fact that one of the landlords did not subsequently prosecute the proceeding would not affect the position in the least and, as the present frame of the suits was not in any way defective, they were sent back to the trial Court to be tried on their merits. It is true that, in the course of their judgment, the learned Judges made an observation that the Assistant Settlement Officer should not have allowed plaintiff No. 5 to withdraw from the suit without the consent of her co-plaintiffs, but that observation appears to me to be perfectly immaterial, having regard to the actual decision in this case. It was not held that Kiran Bala ought to be still deemed to be a party plaintiff to the proceedings; on the other hand, the actual decision was that the subsequent act of withdrawal on her part did not invalidate the proceedings under s. 188 of the Bengal Tenancy Act and, as she was made a pro forma defendant, there was nothing defective in the frame of the suits.
The other important decision which was referred to by Dr. Sen Gupta is that of the Madras High Court in A.M Ramasami Chettiar v. Rengan Chettiar. There, it was held that, irrespective of the provision of sub-r. (4) of O. XXIII, r. 1 of the Code of Civil Procedure, the Court has powers to refuse to allow one of several plaintiffs to withdraw, if such a course is not consented to by the remaining plaintiffs and be prejudicial to their interest. This does not directly touch the point under consideration, though it would be necessary to consider it in connection with the second point raised in the case in the course of the judgment in this case, Curgenven, J. referred to two decisions, one of the Bombay and another of the Madras High Court, upon which reliance has also been placed by Dr. Sen Gupta. They are in the cases of Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel and Punnayya v. Lingayya. In the first of these cases, there was a partition suit instituted by a single plaintiff. During the pendency of the suit, the plaintiff agreed to compromise a portion of the claim, but later on resiled from the agreement and applied to withdraw the suit. The trial Court on evidence held that the adjustment was proved and ordered the agreement to be recorded and given effect to. The plaintiff then appealed to the High Court. On appeal, it was contended on behalf of the plaintiff that he had an absolute right of withdrawal under O. XXIII, r. 1, sub-r. (1), Civil Procedure Code. This contention was negatived and the trial Court's decision was affirmed. It was held by Crump, J. that as, in that case, the suit was adjusted by a lawful compromise, the Court was bound to record the compromise under O. XXIII, r. 3, Civil Procedure Code, and the procedure laid down in that rule was not affected by the provisions of O. XXIII, r. 1, Civil Procedure Code. It was further said that, as a defendant in a partition suit was in the position of a plaintiff and as defendant No. 4 in that suit who claimed partition could, if necessary, have been made a co-plaintiff, the plaintiff could not have withdrawan without his consent as required under O. XXIII, r. 1, sub-r. (4). This, it seems, was an incidental observation, for defendant No. 4 Was not actually made a co-plaintiff. What the learned. Judge really relied upon was the observation of Sir Lawrence Jenkins C.J in Satyabhamabai v. Ganesh Balkrishna, which was to the effect that, when, in a partition suit, the defendant had, by concession of the plaintiff, acquired certain rights, it was not open to the plaintiff who made the concession to annul its effect by withdrawing from the suit. Coyajee, J. concurred in this view and observed as follows:—
In my opinion, the right of a plaintiff to withdraw his suit as affirmed in O. XXIII, r. 1, sub-r. (1), is not absolute in all cases and be controlled by rights existing in other parties to the suit.
In the other case, the facts were somewhat different. There a suit was instituted by two plaintiffs, the plaintiff No. 2 being a minor, who was represented by plaintiff No. 1, his elder brother, as guardian. There was a compromise arrived at between the parties, under which the plaintiffs agreed to withdraw their claim on payment of a certain sum of money. It was held by the High Court that, as the compromise was not binding on plaintiff No. 2, it could not be given effect to at all, inasmuch as plaintiff No. 1 could not withdraw from the suit without the consent of plaintiff No. 2, whose next friend he himself was. This was a case of withdrawal on the basis of a compromise and the compromise was held not to be binding on one of the plaintiffs who was a minor. The decision in substance was that the compromise could not be given effect to, even as regards the major plaintiff, for the result will be that he would be entitled to withdraw from the suit to the prejudice of the minor plaintiff whose guardian he himself was.
In my opinion, having regard to the cases cited above, the conclusion can properly be drawn that when one of several plaintiffs desires to withdraw from the suit without reserving a liberty to institute a fresh suit in respect of the same matter, the consent of the plaintiff is not necessary and sub-r. (4), r. 1 of O. XXIII, Civil Procedure Code, has no application to such cases.
We now come to consider the other point raised in this case as to whether the Court has any powers, quite apart from sub-r. (4), to impose restrictions upon the right of one of the several plaintiffs to withdraw from a suit when such course is detrimental to the interest of the other plaintiffs, even though the withdrawing plaintiff does not want any liberty to renew his suit. It seems to me that an inherent right must be deemed to exist in the Court in exercise of which it can make proper orders in all such cases if the interests of justice so demand. If, as has been said already, sub-r. (1) of O. XXIII, r. 1, does not apply to a case where the withdrawal is sought to be made by one of several plaintiffs, the right of such plaintiff to withdraw must itself be an inherent right and the Court can obviously impose such conditions upon the exercise of such right as it deemed proper. In the case of Nilappagouda v. Basangouda (supra), referred to above, Shaha, J., though he held that sub-r. (4) does not control sub-r. (1), was clearly of opinion that the Court may make suitable orders having regard to the circumstances of each case to see that, by withdrawal of one of the plaintiffs, the other plaintiffs are not prejudiced. Fawcett, J. in that very case reserved for further consideration the question as to how far the Court could, in exercise of inherent powers, control a co-plaintiff from withdrawing a case to the prejudice to the other plaintiffs. He referred in this connection to the provision of English law under which no absolute right is recognised in one of several plaintiffs to withdraw from a suit. In A.M Ramasami Chettiar v. Rengan Chettiar (supra), the learned Judges held definitely that, irrespective of the provision of sub-r. (4), r. 1, O. XXIII, Civil Procedure Code, the Court can refuse to allow one of several plaintiffs to withdraw if such a course is not consented to by the other plaintiffs and is detrimental to their interest. The view taken by the Bombay High Court in Tukaram Mahadu v. Ramchandra Mahadu (supra) was also to the same effect, and the observation of Coyajee, J. quoted above would go to show that, in his opinion, there is no absolute right in a plaintiff to withdraw his suit even under sub-r. (1), O. XXIII, r. 1, Civil Procedure Code. The decision in A.M Ramasami Chettiar v. Rengan Chettiar (supra) was approved of in its entirety by Krishnaswami lyanger, J. in Premji Tulsidas Sait v. P.S Sethu Ramaswami Iyer (supra). It may be stated here that the principles of English law relating to discontinuance of suits as laid down in O. XXVI, r. 1 of the Rules of the Supreme Court, are different in some respects from the Indian law. Under the English law, the plaintiff may, at any time before receipt of the defence, or after the receipt thereof, before taking any steps, unconditionally withdraw from the suit by notice in writing. No leave of the Court is necessary in such cases. After that stage, however, the plaintiff is not competent to withdraw without the leave of the Court and there is no distinction made in English law between cases where liberty to institute a fresh suit is reserved by the plaintiff and where it is not so reserved. But though the English law differs in some respect from Indian law, I think that the principles adopted by the English Courts in the matter of allowing one or two plaintiffs to withdraw from a suit can very well be looked to for determining the way in which the inherent powers of the Court should be exercised in this country. A co-plaintiff, if he has a separate cause of action, can always be allowed to withdraw under the English law, for that does not affect the rights of the co-plaintiffs to continue the action. Vide King v. Sunday Pictorial Newspapers, Ltd.. The same is the case where two plaintiffs claim in the alternative and either can discontinue without leave. The only order necessary in such cases would be an order relating to costs. When the plaintiff desiring to withdraw is a necessary party to the action different considerations arise. The general rule is that when co-plaintiffs disagree, the name of one should be struck out as plaintiff and added as defendant. Vide In re Mathews. Oates v. Mooney
In my opinion, when there is only one cause of action or the right to sue is vested jointly in all the plaintiffs the proper order for the Court to pass would be to make the plaintiff who withdraws from the suit a party defendant so that the suit might not fail for defect of parties. This was also the procedure adopted in Mohamaya Chowdhrain v. burga Churn Shaha, referred to above. We can, however, conceive of exceptional cases, where the striking off of a particular person as plaintiff and adding him as a defendant in the suit would not be sufficient to cure the defect of parties and make the suit legally maintainable. By way of illustration, we may refer to the provision of s. 188 of the Bengal Tenancy Act, as it stood before the amendment of 1928. Under that section, it was necessary that all the landlords must join as plaintiffs. It was not enough that those who did not join as plaintiffs were made defendants to the suit. It is only in such exceptional cases that I think the Court can be justified in the interests of justice to refuse to accept the withdrawal of one of the plaintiffs, unless the consent of the co-plaintiffs is taken.
In the case before us, Mr. Bose agrues that, as his clients are willing to be added as parties defendants, there could be no objection in allowing their names to be removed from the list of plaintiffs. Dr. Sen Gupta points out that one possible construction of the arpannâmâ, on the basis of which this litigation has been started, is that a suit for removal of a managing shehâit has got to be instituted by a majority of shebâits and if the petitioners are now allowed to withdraw there will be no longer a majority of shebâits figuring as plaintiffs and the suit might fail on that ground. We have seen the relevant passage in the arpannâmâ. It is somewhat ambiguous, as is conceded by the learned advocates on both sides. It provides in the first place that the managing shebâits Or any one of them could be removed without any suit, if they were guilty of doing any act detrimental to the debattar. It is next provided that, if all the shebâits were not unanimous in this respect, then the majority of shebâits would be able to exercise the power of removal either amicably or by a suit. The plaintiffs' allegation in the plaint in the first place is that the defendant No. 1 has already been removed by a majority of shebâits. If that case is established, no difficulty arises' and it would be enough for purposes of the suit that the withdrawing plaintiffs are made parties defendants. But there is an alternative prayer in the plaint to the effect that if there was no valid removal of defendant No. 1 by the majority of shebâits, he might be removed by the Court itself. In order to succeed in this part of the case, it is necessary, according to the plaintiff of posite parties, that there should be a majority of shebâits figuring as plaintiffs. There was such a majority when the suit was instituted, and if some are now allowed to withdraw, the result might be to defeat the entire suit. Dr. Sen Gupta has himself conceded that he is not sure as regards the interpretation to be put upon this part of the deed, and we do not think it would be proper on our part to decide this question finally in a Rule arising out of an interlocutory matter. Speaking for myself, I fail to see how it would improve the position of Dr. Sen Gupta's clients, by retaining the petitioners as plaintiffs in the suit, if they do not really desire the removal of the managing shebâits and we cannot compel them to support the case of the other plaintiffs even though they originally signed the plaint. We think, however, that all these are arguable matters regarding which it is possible to take one or the other view and we do not want to prejudice the final decision that the trial Court might arrive at regarding them. I think, therefore, that, in the interests of justice, and at any rate till the above questions are decided, it will be proper not to allow the withdrawal of the petitioners from the suit as parties plaintiffs. The other plaintiffs, however, must indemnify them against all costs that might be allowed against them in future, irrespective of the fact as to whether they do or do not support the co-plaintiffs in the suit.
Subject to this modification, we discharge the Rules and affirm the order of the Court below.
There will be no order as to costs in these Rules.
Pal, J.:— I agree that these two Rules should be discharged and I concur in the order proposed by my learned brother.
The facts of the case are given in the judgment of my learned brother. These Rules were issued by this Court calling upon the opposite party to show cause why the order of the learned Subordinate Judge dated May 6, 1942, disallowing the applicants' prayer for withdrawal from the suit should not be set aside.
The learned Subordinate Judge disallowed the petitioners' prayer for withdrawal by his order dated May 6, 1942, holding—
1. that the application was one under O. XXIII, r. 1, C.P.C;
2. that the provisions contained in sub-r. (4) of r. 1 of O. XXIII, applied to this case:—
that, consequently, as the other plaintiffs withheld their consent and opposed the withdrawal, the Court had no power to allow the withdrawal;
3. that the Court should not permit the applicants to withdraw from the suit, as their withdrawal would prejudice the remaining plaintiffs.
The present Rules were obtained against this order.
Mr. Bose appearing in support of the Rules contends—
1. that sub-r. (4) of r. 1, O. XXIII, C.P.C, does not apply to this case; that sub-rule is limited in its application only to the cases under sub-r. (2);
2. that the application for withdrawal in the present case is under sub-r. (1) of r. 1; for this withdrawal no permission of the Court is necessary, the application is merely an intimation to the Court of the factum of withdrawal; the Court cannot refuse to record the withdrawal; the only power it has in such a case is given in sub-r. (3);
3. that if it be held that sub-r. (1) does not apply to this case then the aplication is not under r. 1 of O. XXIII, C.P.C, at all—
(a) in that case it will be an application invoking the inherent power of the Court to allow withdrawal; in exercising this power, the Court may take into consideration the question of prejudice to others interested in the suit; but
(b) in the facts of this case there will be no prejudice to any if the petitioners be allowed to withdraw.
Mr. Bose relies on Mohamaya Chowdhrain v. Burga Churn Shaha; Premji Tulsidas Sait v. P.S Sethuramswami Iyer; Nilappagouda v. Basangouda; Mahant Biharidasji v. Parshotamdas Ramdas.
Dr. Sen Gupta appearing to show cause contends:—
1. that after the institution of a suit, the plaintiffs have no right of withdrawal beyond what is expressly given them by the statute: sub-r. (1) is the only provision giving this right; the sub-rule limits the jurisdiction of the Court to grant permission to withdraw to cases where all the plaintiffs join in the application;
(a) that this sub-rule gives the only circumstances when the plaintiff can withdraw as of right without Court's permission;,
(b) that sub-r. (1) applies only when all the plaintiffs join;
(c) that in all other cases Court's permission is necessary; so, if the petitioners are invoking Court's inherent power, withdrawal will have to be permitted by the Court; sub-r. (4) applies to every case where permission of the Court is necessary;
(i) that the sub-rule curtails the power of the Court, inherent or conferred by statute, in this respect, and makes it dependent on the consent of the other plaintiffs;
(ii) that in any case, the Court, while called upon to exercise its inherent power, can take into consideration the question of prejudice to others and in this case the Court found such prejudice and rightly found it; its decision in this respect cannot be assailed in revision under s. 115, C.P.C;
2. that sub-r. (4) applies whether the application is under r. 1 or invokes the inherent power.
Dr. Sen Gupta relies on:—
Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel; Kali Charan Singha v. Mahammad Ismail Chowdhury; A.M Ramasami Chettiar v. Rengan Chettiar; Punnayya v. Lingayya and In re Mathews. Oates v. Mooney.
It may be pointed out at the outset that the English law in this respect is not in pari materia with the Indian law. The English principle of “non-suit”, which entitled the non-suited plaintiff to take fresh action on the same subject, never applied here in India; see Watson & Co. v. Collector of Zilla Rajshahye (Sir James Colville), where the Judicial Committee observed that there is no power in the Courts in India, similar to that exercised by the Court of Equity or Common Law in England, to dismiss a suit with liberty for the plaintiff to bring a fresh suit for the same matter, or to enter a non-suit. Even in the English system the old rule of non-suit is no longer applicable: Fox v. Star Newspaper Company, Limited.
Both here and in England the rule of law in this respect is given by the statutes. The rule prevailing in the English system is now to be found in O. 26, r. 1 of the Supreme Court Rules, 1883, and O. 9, r. 1 of the County Court Rules, 1889. There the rule is now known as rule of discontinuance, and it would appear from a perusal of the relevant statutory provisions that, after a certain stage, such discontinuance can happen only with the leave of the Court irrespective of the question whether or not the plaintiff seeks to reserve the liberty to bring a fresh action. The Indian law, however, is quite different in this respect. Since 1859, such law has appeared in the statutes. It was given in s. 97 of Act VIII of 1859, s. 373 of Act X of 1877, and s. 373 of Act XIV of 1882. Now it is to be found in O. XXIII, r. 1 of the present Code of Civil Procedure. Here, right is given to the plaintiff to withdraw in certain cases without any leave of the Court. If, however, the plaintiff desires to reserve the liberty to bring a fresh suit in respect of the same matter, he can do so only with the permission of the Court and the Court's power to permit such withdrawal is defined and limited by the statute.
There seems to have been some divergence of judicial opinion as to the scope and meaning of the relevant provisions of the Indian law in this respect. The cases relied on by the learned advocates on either side in this case will be illustrative of this divergence.
Mohamaya Chowdhrain v. Durga Churn Shaha (supra) (Morris and Tottenham, JJ.) was a suit for enhancement of rent and was brought by two plaintiffs, Ram Kanai Shaha and Ram Lochan Shaha. During the pendency of the suit. Ram Kanai sold his interest in the property to one Chunder Mohun, the son of the defendant. Ram Kanai, thereafter, withdrew from the suit. The Munsif dismissed the suit on December 30, 1879, on the ground that the suit, being one for enhancement of rent, was not maintainable at the instance of Ram Lochan alone. On appeal, the Subordinate Judge was of opinion that the Court below had no power to allow Ram Kanai to withdraw from the suit, his co-plaintiff not having given his consent to such withdrawal. On appeal by the defendant, the High Court reversed this decision of the Subordinate Judge. In delivering the judgment of the Court, Morris, J. observed:—
The lower appellate Court held, under the third clause of s. 373 of the Civil Procedure Code, that Kanai could not be permitted to withdraw from the suit without the consent of his co-plaintiff. But it seems clear to us that the Sub-Judge has misunderstood the meaning of this clause, which is that the Court can only authorise one of several plaintiffs to withdraw from a suit, with permission to renew the suit on his own account, by consent of the others. That any plaintiff can withdraw from a suit is manifest from the terms of cl. (2) of that section. But the result of so withdrawing without the permission of the Court, is that he is precluded from bringing a fresh suit for the same matter.
It was further observed that Ram Kanai having withdrawn from the suit unconditionally, there was no reason why the Court should not accept his withdrawal upon terms as to costs or otherwise as it thought fit. As Chunder Mohun refused to be co-plaintiff with Ram Lochan, the latter remained the sole plaintiff in the suit. But seeing the consequences arising from Ram Lochan being left in this position, the application made by him to add Chunder Mohun as a defendant was allowed by the High Court.
It may be noticed here that the question raised in this case had to be answered with reference to s. 373 of Act X of 1877, which ran thus:—
If, at any time after the institution of the suit, the Court is satisfied on the application of the plaintiff: (a) that the suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for permitting him to withdraw from the suit or to abandon part of his claim with liberty to bring a fresh suit for the subject-matter of the suit or for the part so abandoned, the Court may grant such permission on such terms as to costs or otherwise as it thinks fit.
If the plaintiff withdraw from the suit, or abandon part of his claim, without such permission, he shall be liable for such costs as the Court may award, and shall be precluded from bringing a fresh suit for the same matter.
Nothing in this section shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.
The section did not contain any provision corresponding to that contained in sub-r. (1) of r. 1 of O. XIXIII of the present Code. The statute, therefore, did not contain any provision expressly giving the plaintiff the right to withdraw. The right was held to have been implied from the provisions of the section and the implication of cl. (2) of the section was taken to be that in a case with several plaintiffs, any one or more of them might withdraw without permission. The law as to joinder of plaintiffs was contained in s. 26 of the Code, which was substantially the same as the present O. I, r. 1, C.P.C The relevant portion of the section stood thus:—
All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally or in the alternative, in respect of the same cause of action……………….
Mahant Biharidasji v. Parshotamdas Ramdas (supra) (Sir Lawrence Jenkins, C.J and Batchelor, J.) was a case under the Code of Civil Procedure, 1882 (Act XIV of 1882). The suit was of 1903. There was only one plaintiff in this case and he applied to have the suit withdrawn with permission to bring a fresh suit. The Subordinate Judge recorded the following order upon the application:—
Suit may be withdrawn.
No permission need be granted as the amount in dispute is very small as compared with the main corpus of the endowment. The plaintiff is to her all costs and to pay all costs. No special reason is shown to depart from the usual rule.
In setting aside this order Sir Lawrence Jenkins observed:—
The plaintiff did not require leave to withdraw from the suit unless accompanied with liberty to bring a fresh suit, and, as the Subordinate Judge considered that he ought not to give that liberty, he ought simply to have dismissed the application. Now it is clear that he had no power to make the order he did as to costs unless plaintiff had withdraw from the suit. But the plaintiff had not withdrawn from the suit. All he did was to apply to the Court for the permission to withdraw from the suit with liberty to bring a fresh suit. The Judge had no right to assume that the plaintiff had withdrawn from the suit when he refused to him the liberty which was the sole purpose of his application.
Section 373 of the Code of 1882 gave the law and it was expressed identically with s. 373 of the Code of 1877 given above. This case is an authority for saying that unless liberty to bring a fresh suit is sought to be reserved the applicant does not require any leave of the Court to withdraw. He can withdraw as of right. But this was a case of a single plaintiff.
Nilappagouda v. Basangouda (supra) (Shah and Fawcett, JJ.) was a case of withdrawal from the appeal. There were six appellants in this case and the appellant No. 6 applied for withdrawal from the appeal. The application was opposed by the other appellants on the ground that under O. XXIII, r. 1, C.P.C, the Court cannot allow a co-plaintiff to withdraw without the consent of the other plaintiffs.
Shah, J. observed:—
Under Sub-rule (1)……….it is open to the plaintiff against all or any of the defendants to withdraw his suit or abandon part of his claim. When the particular appellant wants to withdraw, it seems to me that it is open to him to do so. Having regard to the circumstances of the case, the Court may make a suitable order with a view to see that by his withdrawal the other appellants are not unfairly prejudiced. But I am unable to accept the contention urged by Mr. Desai that sub-r. (4) governs sub-r. (1), and that without the consent of the co-appellants he cannot withdraw the appeal. It seems to me that the authorization of the Court contemplated by the sub-rule refers to the permission of the Court which is contemplated by sub-r. (2) allowing the plaintiffs or any of them to withdraw from the suit with liberty to institute a fresh suit. Sub-rule (3) appears to me to make this position clear.
The learned Judge relied on the decision of the Calcutta High Court in Mohamaya Chowdhrain v. Durga Churn Shaha (supra) and observed:—
The addition of sub-r. (1) and the re-arrangement of that s. 373 in the present r. 1 do not alter the position on this point.
Fawcett, J. in this case did not think it essential to consider fully the question whether sub-r. (4) of r. 1 of O. XXIII, governs an application by a co-plaintiff to withdraw his suit or abandon part of his claim, without liberty to institute a fresh suit for the subject-matter of the suit or part of his claim. The learned Judge held that there are substantial reasons in favour of the view taken by Shah, J. that sub-r. (4) only governs cases of the kind mentioned in sub-r. (2). But he considered it open to question whether, apart from sub-r. (4), the Court has not power to control a co-plaintiff who desires to withdraw from a suit, if this will operate to the prejudice of his co-plaintiffs. According to him, for that purpose recourse may have to he had to s. 151 of the Civil Procedure Code, or some other power. He referred to In re Mathews. Oates v. Mooney (supra) for the proposition that one of several co-plaintiffs has no absolute right to withdraw from an action as a matter of course. He also relied on Kali Charan Singha v. Mahammad Ismail Chowdhury (supra)
It may be noticed here that the case of an appeal is very different from that of a suit. Even in a case where the plaintiffs allege that the right to relief exists in them jointly, all the plaintiffs need not join as appellants: s. 544 of the Codes of 1877 and 1882 and O. XLI, r. 4 of the present Code will be the relevant reference for the purpose.
Premji Tulsidas Sait v. P.S Sethuramaswami Iyer (supra) (Krishnaswami Ayyangar J.) was a case where the suit was by three plaintiffs for specific performance of a contract to reconvey certain properties purchased by the defendant from the plaintiffs Nos. 1 and 2 for Rs. 26,000 of which Rs. 17,000 was actually advanced. The plaintiff No. 3 had agreed to finance the plaintiffs Nos. 1 and 2 in getting this reconveyance and the arrangement was that he was to get a usufructuary mortgage of the properties. On the date on which the suit was instituted the plaintiffs Nos. 1 and 2 executed a mortgage in favour of the plaintiff No. 3 by which the former mortgaged the right to obtain a reconveyance from the defendant for a sum of Rs. 50 advanced by the plaintiff No. 3.
The plaintiff No. 3 after having unsuccessfully tendered to the defendant the sum of Rs. 17,000 before suit deposited the money in Court along with, the plaint. Due to some subsequent disputes between the plaintiffs Nos. 1 and 2 and the plaintiff No. 3, the latter put in an application to withdraw from the suit unconditionally without any prayer for permission to file a fresh suit. The other two plaintiffs opposed this application.
Krishnaswamy Ayyangar, J. preferred to follow the view propounded in Mohamaya Chowdhrain v. Durga Churn Shaha (supra) and Nilappagouda v. Basangouda (supra) and observed at p. 374:—
Rule 1 does not contemplate the necessity for, a plaintiff to obtain the permission of the Court to withdraw a suit or abandon part of his claim when he does not seek for liberty to institute a fresh suit on the cause of action withdrawn. It is only in a case where the permission of the Court is required that sub-r. (4) is called into operation and the Court is not to give the permission when the other plaintiffs did not accord their consent.
At the same time the learned Judge observed that this view did not mean that one of several plaintiffs had an unconditional right to withdraw from a suit though it might be that for such a purpose, the consent of the other plaintiffs might not be necessary. In this respect he relied on A.M Ramasami Chettiar v. Rertgan Chettiar (supra) which laid down the proposition that the Court can refuse to allow one of several plaintiffs to withdraw if such a course is not consented to by the remaining plaintiff or plaintiffs and if it be prejudicial to his or their interests. According to the learned Judge;—
The Court is entitled to take into account the consideration whether the result of the withdrawal would tend to prevent the successful prosecution of the suit as framed or create obstacles in the way of the plaintiff so doing. If there is real prejudice to the remaining plaintiffs and they do not consent to the withdrawal, the Court will take this circumstance into consideration before it comes to a decision one way or the other on an application for withdrawal.
The prejudice must be one to the conduct of the suit in the sense of a legal difficulty to the Court in going on with it.
In this, case the right to relief claimed in suit was not alleged to exist jointly in the plaintiffs. On the allegations made in the plaint the plaintiffs would have the right severally.
In Kali Charan Singha v. Mahammad Ismail Chowdhury (supra) (Suhrawardy and Duval JJ.) the question was one of withdrawal from a suit under s. 105, Bengal Tenancy Act, for settlement of fair and equitable rent. All the landlords joined as plaintiffs at the institution of the suit. Subsequently one of them filed an application to have her name “struck out” from the category of the plaintiffs. This application was granted in spite of the opposition of the other plaintiffs. The other plaintiffs then applied to have this outgoing plaintiff added as defendant in the suit, and this prayer was granted. The suit was ultimately dismissed on the ground that is was not maintainable under s. 188, Bengal Tenancy Act, in the absence of one of the co-sharer landlords from the category of the plaintiffs. On appeal it was contended on behalf of the plaintiffs that the Assistant Settlement Officer acted illegally under O. XIXIII, r. 1(4), in allowing the outgoing plaintiff to withdraw from the suit without the consent of the co-plaintiffs. This Court held that this objection was well founded and that the Assistant Settlement Officer should not have permitted one of the plaintiffs to withdraw without the consent of the other co-plaintiffs.
Here obviously the right to relief claimed existed, according to the very case of the plaintiffs, in them jointly. Though no reason is given, this case seems to me to decide (i) that in such a case one of the several plaintiffs shall have no right of withdrawal under sub-r., (1), (ii) that he can withdraw only by invoking the inherent power of the Court and (iii) that in exercising this inherent power the Court would go wrong if it allows the withdrawal to the prejudice of the other plaintiffs.
In Tukaram Mahadu v. Ramchandra Mahadu (supra) (Crump and Coyajee JJ.), the suit was one for partition. Here was only one plaintiff and he filed the suit as the adopted son of the defendant No. 1. The defendants Nos. 3 to 5 were the three wives of the defendant No. 1. The defendant No. 2 was the son of the defendant No. 1 by his wife defendant No. 5. The defendant Nos. 6, 7 and 8 were the daughters of the defendant No. 1. The defendant No. 1 died during the pendency of the suit.
Later on, the plaintiff put in an application stating that he desired to withdraw the suit. The defendants objected to the proposed withdrawal on the ground that there had been an adjustment of the suit.
The trial Court held that the adjustment was proved; that the plaintiff could withdraw if he wished, but that his withdrawal would not deprive the Court of jurisdiction to record the compromise.
On appeal, the High Court upheld the findings that there had been an adjustment of the suit before the proposed withdrawal.
Crump, J. observed:—
It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another [O. XXIII, r. 1(4)].
Later on the learned Judge observed:—
That a plaintiff cannot always and in all circumstances withdraw is a proposition which is not without authority.
Coyajee, J. observed:—
The right of a plaintiff to withdraw his suit, as affirmed in O. XXIII, r. 1, sub-r. (1), is not absolute in all cases and may be controlled by rights existing in other parties to the suit.
In Punnayya v. Lingayya (supra), Ramesam, J. construed O. IXXIII, r. 1(4) as showing that one plaintiff cannot withdraw from a suit without the consent of the others.
In A.M Ramasami Chettiar v. Rengan Chettiar (supra) (Pandalai and Curgenven JJ.) the suit was instituted by two plaintiffs and it was for a declaration that a certain sale deed of 1920 was invalid and inoperative beyond the life-time of the father of the plaintiff No. 1, who died in 1923. The plaintiff No. 1, after having succeeded to the estate, mortgaged the property to the plaintiff No. 2 in 1926, and thereafter the two plaintiffs instituted the present suit. Later on the plaintiff No. 1 applied to withdraw from the suit. This was objected to by the plaintiff No. 2, but was eventually allowed. Then the suit was dismissed, as not maintainable at the instance of the plaintiff No. 2.
Curgenven, J. thought that the use of the word “rule” in sub-r. (4) of r. 1 of O. XXIII, C.P.C, supports the view that the qualification in the subrule applies not only to sub-rr. (2) and (3) but also to sub-r. (1). The learned Judge seemed to share the inclination of Fawcett, J. in Nilappagouda v. Basangouda (supra), where that learned Judge reserved his opinion whether, apart from the terms of the rule, the Court had no power to control a co-plaintiff who desires to withdraw from a suit, if such withdrawal would operate to the prejudice of his co-plaintiffs and where Fawcett, J. referred to the English case of Mathews, In re Mathews Oates v. Mooney (supra), in which it was held that one of several co-plaintiffs has no absolute right to withdraw from an action and have his name struck out. Curgenven, J. observed:—
The reason, of course, is that, if one person engages with another or others to institute a suit, he ought not to be allowed to resile if such action will be to the detriment of his co-plaintiff in the conduct of the proceedings. This, we think, is a perfectly valid principle and it finds support in the terms of sub-r. (1), O. XXIII, r. 1, which says ‘the plaintiff’ may withdraw. Where there are more plaintiffs than one, the expression ‘the plaintiff’ must be read as all the plaintiffs collectively, and not so as to include one only amongst several plaintiffs.
According to the learned Judge this principle was recognized and acted upon in Tukuram v. Ramchandra (supra) and Punnaya v. Lingayya (supra). He, therefore, held that—
Irrespective of the question whether sub-r. (4) governs sub-r. (1) the Court can refuse to allow one of several plaintiffs to withdraw if such a course is not consented to by the remaining plaintiff or plaintiffs and be prejudicial to his or their interest.
In In re Mathews Oates v. Mooney (supra) (Swinfen Eady J.), an action was brought by three plaintiffs, Mrs. Oates, H.J Simpson and Isabel Bateman, against the trustees of the will of the last owner. Mrs. Oates was entitled under the will to the income of a sum of £ 1,500 in the hands of the trustees. She mortgaged her interest in the fund to, a company with a power for the mortgagees to take any proceedings they might think proper in or about the estate…………and if necessary to use the name of the mortgagor for that purpose. The motgagee company sub-mortgaged one-third of the interest to H.J Simpson and another one-third to Isabel Bateman. Mrs. Oates settled her dispute with the defendants by private arrangement and wanted to withdraw from the action. The other two plaintiffs opposed this withdrawal.
Swinfen Eady, J. observed at p. 463:—
It has been pointed out in several cases that it is not a matter of oflurse to allow a co-plaintiff to withdraw and have his name struck out at any time. The general rule is that where co-plaintiffs disagree the name of one is struck out as plaintiff and added as defendant. But………. “an order to strike out a name of a co-plaintiff will not be made as a matter of course even on the terms of giving security for costs”.
The rule of law controlling withdrawal in this case was given by O. XXVI, r. 1, of the Supreme Court Rules, 1883, which ran thus:—
The plaintiff may, at any time, before receipt of the defendant's defence, or after the receipt thereof, before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court or a Judge, but the Court or a Judge may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued or any part of the alleged cause of complaint to be struck out…………………………………….
As has already been pointed out, this is not in pari materia our Indian law on the point. In English law, leave of the Court is always required after a certain stage.
In order to solve the question that arises for our consideration the following approaches to it must be remembered and must be kept distinct:—
1. From the view-points of the plaintiff's power of withdrawal;—
(a) when the plaintiff wants to withdraw unconditionally and
(i) can withdraw as of right, or.
(ii) can withdraw only with the aid of the Court;
(b) when he wants to withdraw with liberty to bring a fresh suit.
2. From the view-points of the Court's power to allow withdrawal:—
(a) the power, as conferred by the rule;
(b) the power, if any, that exists outside the rule—the inherent power of the Court.
3. From the view-points of the Court's power to control withdrawal—
(a) when the plaintiff can withdraw as of right;
(b) when the plaintiff can withdraw only with the aid of the Court;
(i) when the plaintiff seeks to withdraw with liberty to bring a fresh suit;
(ii) when he seeks to withdraw unconditionally;
(A) as of right, his case being covered by sub-r. (1),
(B) though his case is not covered by sub-r. (1).
An examination of the relevant provisions of the statute seems to yield the following results:—
The case 1(a)(i) is provided for in sub-rr. (1) and (3) of r. 1 of O. XXIII, Civil Procedure Code.
The case 1(a)(ii) arises when it is not within the terms of sub-r. (2); the inherent power of the Court must be invoked in such a case. The case 1(b) is dealt with in sub-rr. (2) and (4); the plaintiff cannot withdraw as of right; Court's power is also very much circumscribed.
The case 2(a) is met by sub-r. (2) and is controlled by sub-r. (4).
The case 2(b) is the case of the inherent power of the Court not controlled by sub-r. (4).
The case 3(a) is provided for in sub-r. (1). Sub-r. (3) gives the Court's power in such a case. The Court has no power otherwise to control the withdrawal in such a case.
The case 3(b)(i) is provided for in sub-r. (2)—the exercise of the power itself is discretionary and is further controlled by sub-r. (4).
In the case 3(b)(ii)(A) the Court has no power to control withdrawal, it can only award costs under sub-r. (3).
In the case 3(b)(ii)(B) the power to be exercised being the Court's inherent power, its exercise is discretionary with the Court and the Court shall consider the questions of prejudice to the other parties to the suit.
The law in India is now given in O. XXIII, r. 1 of the Code of Civil Procedure which stands thus:—
(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied—
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of & claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-r. (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
In, my opinion, the contention of Mr. Bose is correct so far as the meaning and scope of sub-r. (4) is concerned.
The Justice of the rule given in O. XXIII, r. 1, C.P.C, can hardly be denied. It sometimes may unfortunately happen to a plaintiff that he finds before the hearing that his action is one in which he cannot possibly succeed. Or it may be that he finds that, although there is a fair possibility of his succeeding against some, or one, of the defendants, there is no likelihood of his getting judgment against another or others of them. The rules and orders, accordingly, give him power to withdraw. So far as O. XXIII, r. 1, C.P.C, is concerned, the active power of the Court is limited, except as to costs, to those cases where the plaintiff asks for permission to withdraw with liberty to bring a fresh suit. Where a plaintiff abandons or withdraws at his own will before any issue has been tried and decided, O. XXIII, r. 1(3), C.P.C, will prevent his repetition of the suit. Where he does so after any issue has been tried and decided, s. 11 of the Civil Procedure Code will add a further barrier thereto. But whatever may be the legal effect of the plaintiff's action, so far as unconditional withdrawal is concerned, the plaintiff is the master of his own procedure. It is only when he seeks to avoid the above barriers, so as to leave the subject-matter of the lis open to future treatment, that he gets beyond his depth, and must invoke the aid of the Court. The Court alone can give him liberty to bring a fresh suit and to a prayer for such relief sub-r. (2) applies.
The main object of this section is to prevent a defeat of justice on technical grounds. It recognizes the possibility of human error made in good faith, which can only be effectively set right by proceeding de novo. In proper cases to further the ends of justice and not to set a premium on carelessness or merely to give another opportunity to a plaintiff who has been defeated after a fair trial, it allows the plaintiff to wash out his genuine errors in procedure, and to begin over again with a clean state. The grounds upon which a locus poenitentiae of this kind is permitted are placed in the section under two heads, the one special and the other general.
Sub-rule (2) of this r. 1 alone confers some power on the Court to permit withdrawal. The Court may have, and perhaps has, power to permit withdrawal even outside this Rule. But so far as the power conferred upon it by the Rule is concerned, it is controlled and restricted by sub-r. (4). The authority of the Rule does not empower the Court to permit withdrawal in the case of several plaintiffs without the consent of these plaintiffs. Sub-rule (4) thus applies only when permission is required and then again only when such permission is to be given in exercise of the power given to the Court by this Rule. Outside the provisions of sub-r. (2) the Court has no power to permit withdrawal with liberty to bring a fresh suit. It follows, therefore, that whenever a plaintiff wants to withdraw with such liberty, the Court cannot permit him to do so without the consent of the other plaintiffs. No other consideration can arise if the other plaintiffs withhold such consent. If, however, they give their consent, then the bar imposed by sub-r. (4) to the exercise of the power conferred by sub-r. (2) is removed. The Court can now exercise that power. But the exercise of the power itself being discretionary, the Court may take into consideration the interest of the defendants.
But, in my opinion, the scope of sub-r. (1) is not as wide as Mr. Bose contends, though it may not be quite so narrow as Dr. Sen Gupta urges.
In order fully to appreciate the meaning and scope of sub-r. (1) we must not lose sight of the provisions like those contained in O.I, r. 1 of the Code of Civil Procedure, for the joinder of plaintiffs, which stands thus:—
All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transactions is alleged to exist, whether-jointly, severally or in the alternative, where, if such person brought separate suits, any common question of law or fact would arise.
The sub-rule gives a plaintiff right to withdraw only his suit or abandon his claim. This can be done only by the entire body of the plaintiffs when they allege that the right to the relief exists in them jointly. The suit and the claim in such a case are the suit and the claim of these plaintiffs collectively. But as persons may join in one suit as plaintiffs, even when they claim severally or, in the alternative, their several or alternative reliefs will be their own respective suits or claims and they will be entitled to, withdraw or abandon them under this sub-r. (1). No leave of the Court will be needed for this purpose.
In this view no right of withdrawal is given by this Rule to some of the plaintiffs in a case where they allege the right to the relief as existing in them jointly without the leave of the Court. Even the Court's power under the Rule is limited to the case of withdrawal with liberty to hying a fresh suit. When such liberty is not sought for, the Court is not authorized by the Rule to allow withdrawal. It is only in exercise of its inherent power that the Court can move in the matter.
When, therefore, such a plaintiff wants to withdraw without such liberty, his only remedy is to invoke the inherent power of the Court. The exercise of this inherent power is not hampered by the provisions of this Rule. But certainly all considerations of justice or prejudice will be open to it, while called upon to exercise its inherent power. The consent of the other plaintiffs in such a case is not at all required. Sub-rule (4) has no application here. The consent is material only so far as the consideration of their prejudice is concerned. If they are sui juris and give their consent, the Court need not trouble itself with the question of their prejudice. Still the questions of prejudice and harassment of the defendants remain and before exercising the inherent power in favour of withdrawal, the Court will weigh them properly.
The views I have taken may thus be summarised:—
1. That O. XXIII, r. 1, sub-r. (1), exhaustively deals with the cases where the plaintiff can as of right withdraw suit or abandon part of his claim;
(a) that the use of the word “his with the words suit” and “claim” is significant; the sub-rule must be read with O. I, r. 1, C.P.C, which provides for the joinder of the plaintiffs;.
(i) that when the persons are joined in one suit as plaintiffs alleging that the right to, relief exists in them severally or in the alternative, then—
(a) any of them having the several right to the relief according to the allegations made in the plaint will have right to withdraw his several claim under sub-r. (1),
(b) any of them having the right to the relief in the alternative according to the allegations made in the plaint will have right to withdraw his claim in the alternative under sub-r. (1);
(ii) but when, and so far as, the persons join as plaintiffs alleging that the right to relief exists in them jointly, all these persons collectively will be the plaintiff, and the: Suit and the claim will be theirs jointly within the meaning of the sub-rule. The sub-rule will apply only when they withdraw or abandon collectively;
(a) that no leave or permission of the Court is required if and when the plaintiff wants to withdraw in exercise of the right given to him in this respect by sub-r. (1);
(i) that the only power of the Court in such a case of withdrawal is to award costs against the withdrawing plaintiff under sub-r. (3);
(ii) that the legal consequences of such withdrawal will be that the withdrawing plaintiff shall be precluded from instituting any fresh suit in respect of the same matter;
(b) that if a plaintiff's case is not covered by sub-r. (1), he shall have no claim to withdraw or abandon the suit or claim as of right; but this does not curtail the inherent power of the Court to allow such withdrawal.
2. That sub-r. (2) is the only provision empowering withdrawal with liberty to institute a fresh suit:—
(a) such withdrawal can be made only with the permission of the Court,
(b) Court's power to permit such withdrawal is limited,
(i) by the grounds specified in sub-r. (2)
(c) exercise of this power is discretionary with the Court.
N.B—Besides the provisions contained in sub-r. (2), the Courts in India have no power to non-suit a plaintiff with the consequence of entitling him to bring a fresh suit in respect of the same matter:
3. That sub-r. (4) applies only to the cases under sub-r. (2):
(a) the sub-rule applies to all the cases of several plaintiffs, when any of them wants to, withdraw with liberty to, bring a fresh suit;
(i) Court cannot permit without the consent of the other plaintiffs,
(ii), consent being given, Court can still refuse to permit on other considerations: sub-r. (2) does not oblige the Court to permit. It simply empowers it to grant such permission: exercise of the power under the sub-rule is discretionary with the Court.
In the present case, the petitioners wanted to withdraw from the entire suit. According to the allegations in the plaint, the right to some of the reliefs claimed in the suit exists in the plaintiffs neither severally nor in the alternative, but jointly. This is the position at least so far as the question of removal of the defendant No. 1 by the Court is concerned. In the view that I have taken of the meaning and scope of sub-r. (1) of r. 1 of O. XXIII of the Code of Civil Procedure, the petitioners cannot, as of right, claim to withdraw from this suit. As no liberty to bring a fresh suit was sought for, the power conferred on the Court by r. 1 excepting its power to award costs under sub-r. (5) could not be exercised. In such a case the only course left to the petitioners was to invoke the aid of the Court in exercise of its inherent power. The Court; in exercise of that power, refused to allow them to withdraw from the suit, as, in its opinion, such withdrawal might prejudice the right of the other plaintiffs to continue the suit successfully. The materials placed before us do not entitle us to say that in thus refusing leave to withdraw, the Court has committed any error.
Rules discharged.
A.C.S