Source – Madhya Pradesh Court

Why in News?

The Madhya Pradesh High Court has held that if one of several plaintiffs having independent right to relief and which is severable from the right claimed by the other plaintiffs seeks to abandon the claim in the suit, then the Court can grant such relief in its discretion.

• The aforesaid observation was made in the matter of Kapoori Bai & Ors. v. Neelesh & Ors.

What was the Background of Kapoori Bai & Ors. v. Neelesh & Ors. Case?

• In this case, the predecessor-in-title of the present petitioners and other plaintiffs have filed a civil suit for declaration of title and permanent injunction in respect of the Suit Property.
• During the pendency of the suit, plaintiff no.7 had expired and learned Trial Court allowed the application under Order 22 Rule 3 of the Code of Civil Procedure, 1908 (CPC) as a legal representative of the deceased-plaintiff no.7 was already on record.
• Some of the plaintiffs moved an application under Order 23 Rule 1 of CPC, likewise petitioner also moved a similar application before the learned Trial Court seeking permission to withdraw the plaint on the ground of plaintiff no.6 had obtained their signatures without their consent and knowledge
• The learned Trial Court dismissed the application filed by the petitioner.
• Being aggrieved by the aforesaid order, the present petition has been preferred before the High Court of Madhya Pradesh.
• Allowing the petition, the High Court set aside the order of the Trial Court.

What were the Court’s Observations?

• Justice Milind Ramesh Phadke observed that if one of several plaintiffs having independent right to relief and which is severable from the right claimed by the other plaintiffs 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-plaintiffs, his/her consent would not be an essential condition 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.

What are the Relevant Legal Provisions Involved in it?

Order XXII Rule 3 of CPC

• Order XXII Rule 3 of CPC deals with the procedure in case of death of one of several plaintiffs or of sole plaintiff. It states that—

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

Order XXIII Rule 1 of CPC

About:

• Order XXIII Rule 1 of CPC deals with the withdrawal of suit or abandonment of part of claim. It states that—

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied, —

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff—

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), 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.

(5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.

Case Law:

• In Baidyanath Nandi v. Shyama Sundar Nandi (1943), the Calcutta High Court held 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 co-plaintiff is not necessary.