PERMOD KOHLI,J. - (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. The counsel for the appellants has argued that the appellants are entitled to withdraw the appeal, without the consent of appellant No. 6. Reliance is placed on the following judgments : Nilappagouda Goudappagouda and others v. Basangouda Sangangowda and others, AIR 1927 Bombay 244, wherein following observations have been made : "This is an application by Appellant No. 6 to withdraw from the appeal. There are other Appellants Nos. 1 to 5 with whom he had joined in presenting this appeal. The application is opposed by the learned pleader for appellants Nos. 1 to 5 On the ground that under Order 23, Rule 1, the Court cannot allow a co-plaintiff to withdraw without the consent of the other plaintiffs. Under sub-Rule (1), however, 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-rule (4) governs sub-Rule (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-Rule (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. It may be mentioned that under the old Code, with reference to Section 373 it had been held that the consent of the co-plaintiffs was not necessary to enable a plaintiff to withdraw the suit, but that such consent was necessary when he wanted to withdraw from the suit with the permission of the Court to file a fresh suit. See Mohamaya Chowdhrain v. Durga Churn Shaba. (1) The addition of sub-rule (1) and the re-arrangement of that Section 373 in the present rule (1) do not alter the position on this point. I am, therefore, of opinion that it is not open to the Court to disallow the present application on the ground that the consent of the co-appellants is not forthcoming." Similar view was held in Baidyanath Nandi and others v. Shyama Sundar Nandi and "others, AIR (30) 1943 Calcutta 427, the relevant obsevations in the said judgment are - 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 rerserving a liberty to institute a fresh suit in respect of the same matter, the consent of the co- plaintiff is not necessary and sub.r.(4) of Rule 1 of Order 23, Civil Procedure Code, has no application to such cases." Both these judgments have been rendered interpreting sub-Rule (4) of Rule 1 of Order 23, which reads as under :- "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," However, Code of Civil Procedure was amended vide Code of Civil Procedure (Amendment) Act, 1976 and entire Rule 1 of Order 23 was substituted. Amended Rule 1 of Order 23 is quoted hereunder :- "1. Withdrawal of suit or abandonment of part of claim - (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 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 a 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 authorise 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." Sub Rule (4) has been replaced by sub-Rule (5). A bare perusal of sub-Rule (5) clearly draws a distinction between sub-Rule (4) of the unamended Code of Civil Procedure and new sub-Rule (5). Sub-Rule (4) prior to amendment did not refer to sub-Rule (1) or sub-Rule (3) or any other sub-Rule of Rule 1 of Order 23 or Code of Civil Procedure.
(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).;