Consent Of Co-Plaintiffs Not Necessary For Withdrawal Of Suit By Plaintiff Whose Relief Is Severable From Others: MP High Court

The Madhya Pradesh High Court at Gwalior has laid down that if one of several plaintiffs having independent right to relief which is severable from the right claimed by the other plaintiffs, seeks to abandon his/her claim in the suit, the Court may grant such prayer in its discretion. 

Justice Milind Ramesh Phadke added that this is so if such abandonment of claim by the plaintiff does not affect the right to relief of the co-plaintiffs, and that in such a scenario, the consent of the co-plaintiffs would not be a sine qua non. 

"...if one of several plaintiffs having independent right to relief and which is severable from the right claimed by the other plaintiff(s) seeks to abandon his claim in the suit once and for all without reservation and such abandonment does not affect the right to relief of the co-plaintiff(s), his/her consent would not be a sine qua non and the learned Court may, in its discretion, can grant the prayer made before it on such terms as it considers just and proper supported with reasons. Such an interpretation is intended to 'iron out the creases' and not alteration of the material of which the Code is woven," the Court observed. 

The factual matrix reveals that the predecessor-in-title of the petitioner and other plaintiffs filed a civil suit for declaration of title and permanent injunction in respect of a property. During the pendency of the suit, it is noted that the 7th plaintiff expired and the Trial Court allowed the application under Order 22 Rule 3 ('procedure in case of death of one of several plaintiffs or of solo plaintiff'), since a legal representative of the deceased 7th plaintiff was already on record.

Some of the plaintiffs sought withdrawal of the suit on the ground that the 6th plaintiff had obtained their signatures without their consent and knowledge. It is on dismissal of the petitioner's application that the present plea was thus filed. 

Advocate Ankit Singh Rajput submitted on behalf of the petitioners that the Trial Court failed to appreciate the fact that application under Order 23 Rule 1 of CPC was filed by all the plaintiff except the 6th plaintiff on the ground for defrauding them their signatures had been taken and that it was without taking into consideration this aspect that the application had been dismissed. It was also averred that the Trial Court did not appreciate the fact that when one of several plaintiffs desired to withdraw the suit without reserving liberty to institute a fresh suit in respect of the same subject matter, the consent of the co-plaintiffs would not be required. 

Advocate Kaluram Kushwaha however argued on behalf of the respondents that Order 23 Rule 1 CPC which governs the rules pertaining to the withdrawal of suit by a plaintiff mandates the co-plaintiff to obtain the permission from the other plaintiff for withdrawal from the suit. It was thus contended that since the consent of all the plaintiffs had not been obtained in this case, the petitioners could not have been allowed to withdraw from the suit. 

Perusing Order 23 Rule 1 CPC, the Court ascertained that a plaintiff may abandon his suit or abandon a part of his claim at any time after the institution of a suit, and that the withdrawal of the suit would be complete as soon as an application had been filed under the provision. 

On the aspect as to whether consent from co-plaintiffs would be required for a plaintiff to withdraw from a suit, the Court placed its reliance on decisions such as Baidyanath Nandi v. Shyama Sundar Nandi (1943), and Mihir Kumar Talukdar vs Pradip Kumar Sengupta & Ors. (2011), which laid down that the consent of co-plaintiffs would not be necessary if the withdrawal of one plaintiff from a suit did not have an adverse impact upon the others. 

In this backdrop, the Court determined that the reliefs claimed by the plaintiffs were severable in the sense that abandonment of relief claimed by one plaintiff would not affect in any manner the right of the other plaintiffs. 

It thus went on to state, 

"...there is no reason as to why the plaintiff seeking to abandon his claim in the suit, or withdraw from the suit without asking for permission of the Court to file a fresh suit, should be made to continue lending his or her name in the proceedings as plaintiff or as a transposed defendant only because the co-plaintiff does not consent to such abandonment of the claim or withdrawal from the suit without any justification". 

It thus set aside the impugned order and allowed the application preferred by the petitioner under Order 23 Rule 1 CPC to withdraw from the suit. 

Citation: 2024 LiveLaw (MP) 10

Case Title: Kapoori Bai & Ors. v. Neelesh & Ors. 

Case Number: MISC. PETITION No. 4948 of 2022

Click Here To Read/Download The Order