A plaintiff in a multi-plaintiff suit can withdraw without co-plaintiff consent if the claims are independent and severable.

ORDER :

1. The present petition under Article 227 of the Constitution of India has been filed against the order dated 1.9.2022 passed by Civil Judge Junior Division, Lateri, District Vidisha in R.C.S. No.23-A/2021, whereby an application under Order 23 Rule 1 of CPC filed on behalf of the present petitioners for withdrawal of the plaint was dismissed.

2. Brief facts of the case are that 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 bearing Survey No.396 admeasuring 1.148 hectare against the respondents no.1 to 6/defendants. During the pendency of the suit, plaintiff no.7 Geeta Bai had expired on 5.6.2002 and learned Trial Court allowed the application under Order 22 Rule 3 as a legal representative of the deceased-plaintiff no.7 was already on record. The present petitioner/plaintiff no.1 to 3 and 5 and 8 to 10 moved an application under Order 23 Rule 1 of CPC, likewise petitioner/plaintiff no.4 also moved a similar application on 17.8.2022 before the learned Trial Court seeking permission to withdraw the plaint on the ground of plaintiff no.6 Rekha Bai had obtained their signatures without their consent and knowledge and thus the plaintiff no.1 to 5 and 7 to 10 are not willing to contest the suit against the defendants and thus, prayed for withdrawal of the suit.

3. The present respondents no.1 to 6/defendants did not filed any reply to the application, however, respondent no.7/plaintiff no.6 filed objections and prayed for dismissal of the said application. The learned Trial Court vide impugned order dated 1.9.2022 dismissed the application filed by the petitioner. Being aggrieved by the aforesaid the present petition has been preferred.

4. Learned counsel for the petitioner has vehemently argued that the impugned order dated 1.9.2022 passed by the learned Court is perse illegal and without jurisdiction, therefore, deserves to be set aside. It was further argued that learned Trial Court has failed to appreciate the fact that application under Order 23 Rule 1 of CPC is filed by all the plaintiff except plaintiff no.6 on the ground for defrauding them their signatures have been taken and therefore, they do not wish to continue with the suit. But ignoring this aspect the said application was dismissed which is not sustainable. It was also argued that the learned Trial Court has not appreciated the fact that when one of the several plaintiff desired to withdraw the suit without reserving liberty to institute a fresh suit in respect of the same subject matter the consent of the co-plaintiff is not required and the provisions of sub-rule (5) of Rule 1 of Order 23 will not have any application in that case. To bolster his submission reliance was placed in the matter in the case of Mihir Kumar Talukdar vs. Pradip Kumar Sengupta and others , AIR 2011 (Calcutta) 211.

5. Per contra the learned counsel for the respondent no.7/plaintiff no.6 contended that there is no illegality committed by the learned Trial Court in rejecting the application as under the provisions of Order 23 Rule 1 of CPC itself mandatorily required for the co-plaintiff to obtain the permission from the other plaintiff for withdrawal from the suit and since the consent of all the plaintiffs have not been obtained, therefore, the present petitioners could not have been allowed to withdraw from the suit. While placing reliance on sub- rule (5) of Rule 1 of Order 23 it was contended that Court is not authorized to permit one of the several plaintiffs to abandon a