KULDIP SINGH Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) THROUGH the medium of this application, the appellants except No. 6 seek to withdraw this appeal.

(2.) VIDE introluctory order dated 8.5.2008, learned counsel for the appellants sought some time to examine the question whether some of the appellants are entitled to withdraw the appeal without the consent of the others, in view of the specific provisions contained under sub-Rule (5) of Rule 1 of Order 23.

(3.) THE Courts in the above referred judgments have held that the consent of the co-plaintiff is needed only where the suit is sought to be withdrawn with liberty to file a fresh suit. As mentioned hereinabove, there is a marked distinction between the earlier sub-Rule (4) and the present sub-Rule (5). Sub-rule (5) imposes restrictions on the power of the Court to permit one of the several plaintiffs to abandon a suit or part of a claim under sub-Rule (1) or to withdraw, under sub-Rule (3), without the consent of the other plaintiffs. This clearly indicates that the withdrawal whether with liberty to file a fresh one or simplicitor i.e. without liberty which can be termed as absolute withdrawal - both are regulated and controlled by sub-Rule (5).