NILAPPAGOUDA GOUDAPPGOUDA Vs. BASANGOUDA SANGANGOWDA

JUDGEMENT

(1.) 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 XXIII, 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 coappellants he cannot withdraw the appeal. It seems to me that the authorization of the Court contemplated by that 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. Subrule (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/s. Durga Churn Shaha. (1881) 9 C.L.R. 332. 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 o-appellants is not forthcoming.

(2.) In view, however, of the facts of this case, it is clear to my mind that the appellant No. 6 who wants to withdraw should be allowed to be joined as a respondent by the remaining appellants. No further notice of the appeal to him will be necessary in view of the fact that this order is made in the presence of his pleader.

(3.) I would, therefore, allow appellant No. 6 to withdraw from the appeal and direct that he be joined as a respondent in view of the position which he has now taken. Fawcett, J.