( 1 ) A strange situation has arisen in these proceedings as the suit has been filed by one of the partners of the plaintiff-firm against the defendant-firm which is its namesake and has one common partner, namely, sh. Madan Lal Aggarwal. It is alleged that the defendant-firm has used trade name of the plaintiff-firm by way of passing off in order to derive unjust advantage from the goodwill of the name of the plaintiff-firm. Sh. Madan Lal Aggarwal has been arrayed as defendant No. 2 on the premise that he is partner in defendant firm.

( 2 ) THE instant application under Order 23 Rule 1 cpc has been moved by defendant No. 2, Sh. Madan Lal aggarwal in his capacity as the partner of the plaintiff firm for withdrawal of the suit along with another partner, namely, Smt. Leela Devi Aggarwal.

( 3 ) I am afraid the application is not-maintainable as the provisions of Order 23 Rule 1 CPC confer the power on the plaintiff alone to withdraw the suit. Any party arrayed as defendant even if he happens to be one of the partners of the plaintiff-firm cannot take the place of plaintiff for the purpose of withdrawal of the suit as the relief sought is against another firm which is inde