Order 23 rule 1 (3) CPC: Withdrawal Of A Plaintiff From A Suit – Do Co-Plaintiffs Have A Say?
Written by Vaishnavi Bandhakavi
ABSTRACT
Order XXIII of the Civil Procedure Code, 1908 deals with withdrawal vis-a-vis declares the effects of withdrawal. Withdrawal of suit is bifurcated into two viz., absolute withdrawal and qualified withdrawal. Absolute withdrawal means withdrawal without the leave of the court whereas, qualified withdrawal means withdrawal with the leave of the court as delineated under the Civil Procedure Code[1]. It must be emphasised that the court has the discretion to grant leave for withdrawal either suo moto or on the application of the plaintiff. Howbeit, the grant of leave to withdraw the suit with the liberty to file a fresh suit duly removes the bar of rest judicata that restricts the filing of a fresh suit. This Research paper mainly focuses on the withdrawal of a suit by a plaintiff under CPC, do co-plaintiffs consent is required?
INTRODUCTION
Under the scheme of the code of civil procedure, 1908 (CPC), A plaintiff who has instituted a suit before the court, also has the right to withdraw from such suit in such cases, the plaintiff does not require the leave of the court for withdrawal from such suit, as long as the plaintiff does not intend to institute the suit afresh . However, the right of a plaintiff in this regard is subject to different qualifications when there is more than one plaintiff in a suit. [2]It has often been the case that the dominus litis in a suit withdraws from the suit and the court dismisses the suit based on such withdrawal, which adversely affects the interest of other plaintiffs involved in the suit.[3]
Under Order 23 of Code of civil Procedure, 1908 deals with withdrawal and compromise of suits, withdrawal of suits or abandonment of there are two types of withdrawal:
1) Absolute withdrawal: Withdrawal without the leave of the court
2) Qualified Withdrawal: Withdrawal with the leave of the court
As long as the plaintiff does not institute a suite he doesn’t need to leave the court to file a fresh suit. An application is filed under Order 23 Rule (1 (3) CPC, the court need to look after whether any of the two reasons spelled out under order 23 Rule 1(3) CPC, 1980, which is instituted and only when anyone of these two reasons gets attracted, freedom can be given for withdrawing the suit and to file a new suit.
PROVISIONS RELATED TO ORDER 23:
Withdrawal without leave of court rule 1 (1):
Rule 1 (1) provides for the withdrawal of suits without the leave of the court. Rule (1) states that if any plaintiff may abandon his suit or abandon a part of his claim against all or any of the defendants without the leave of the court, the right is absolute and unqualified and the court cannot refuse permission to withdraw a suit and compel the plaintiff to proceed with it. The principle underlying order 23 rule 1 is that once a plaintiff invokes the jurisdiction of the court and institutes a suit, he cannot be permitted to institute a fresh suit in respect of the subject matter if he withdraws such suit without the authorization of the court to file a new fresh suit.
The court may in certain contingencies, grant permission to withdraw suit with liberty to file fresh suit, order 23 rule one clause three: To file a fresh suit in case of withdrawal of suit without seeking permission to file a fresh suit is based upon on rule of public policy.
Grounds
Permission may be granted by the court on the following grounds:
1) Formal Defect:
Although the expression “Formal Defect “has not been clearly mentioned in the code; it confers some defect of form or procedure which shall not affect the case merits. But if there arouse a defect which affects merits of the case, or a defect which goes to the fundamental of the plaintiff’s case cannot be called as a formal defect. Such as non-joinder of parties, bar of limitation.
2) Sufficient Grounds:
The expression “Sufficient grounds” need not generally be constructed “ejusdem generis” (of the same kind or nature) with formal defect.
For instance, where the suit was premature or it had become infructuous, or where if the defendant is failed or absent even after the decree passed it could not be executed or there was an omission to file a power of attorney, then it can be termed as sufficient ground.
3) Effect of leave:
It is in the discretion of the court to grant such permission and it can be granted by the court on an application of the plaintiff or even suo motu. The granting of permission to withdraw a suit with the autonomy to file a fresh suit removes the res judicate bar.
In the case of Kasturi lal Jain and others Vs. Madan Lal Jain and others held that the Delhi high court had not allowed two plaintiffs to withdraw a suit on behalf of all the plaintiffs who served a notice on rest of the plaintiffs who did not give consent to such withdrawal.
RIGHTS OF A PLAINTIFF TO WITHDRAW A SUIT AND CONSENT OF CO-PLAINTIFFS
Order 23 of the CPC Governs the rules pertaining to withdrawal of a suit by a plaintiff as per order 23 rule 1 (1) of the CPC a plaintiff may abandon his suit or abandon his part of his claimant any time after the institution of a suit as soon as an application is filed under the sub-rule [4]. The withdrawal of the suit is complete. Such withdrawal is not dependent on courts order. The court’s permission is only required in such cases where a plaintiff desires to institute a fresh suit for the same cause of action. [5]
Order 1 rule 1 of the CPC provides that all persons having any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions whether jointly or in the alternative maybe joined in one suit as plaintiffs, the parties inter say are referred to as co-plaintiffs.
CASE LAWS:
In “Bhoopathy vs Kokila” AIR 2000, SC 2132: The supreme court held that:
The court is to discharge the duty mandated under the provision of the Code by taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order twenty-three Rule One is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff avoiding the decree or decrees against him and seeking a fresh adjudication of the controversy on a clean slate. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensuring strict compliance with the conditions prescribed in Order twenty-three Rule one (three) C.P.C for the exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action.
Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in a waste of public time of courts which is of considerable importance in the present time in view of the large accumulation of cases in lower courts and inordinate delay in disposal of the cases.
It is the duty of the court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file a fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at the appellate or second appellate stage prejudice to the defendant is writ large as he loses the benefit of the decision in his favour in the lower court” [6]
In “Rathinavel Chettiar (Supra) The Supreme Court has held that:
Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties that came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. ….. Where a decree passed by the Trial Court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by the withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody’s vested rights”
In”Sneh Gupta Vs Devi Sarup : (2009) 6 SCC 194, it is stated that:
“A permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit. The Court for the purpose of allowing withdrawal of a suit after passing the decree, viz., at the appellate stage, is required to consider this aspect of the matter
Therefore, it is now well-settled that there is a restriction on the right to withdraw from the suit at the appellate stage. The plaintiff has no absolute right, at the appellate stage, to withdraw from the suit. An application made at the appellate stage to withdraw the suit cannot be allowed by the court if granting such permission would have the effect of depriving or destroying or nullifying or annulling any right which has come to be vested with the defendant under the decree. The court shall keep in mind the fact that, when permission is granted to withdraw from the suit with liberty to file a fresh suit, the parties are placed in the same position as they would have been, had the suit not been instituted at all
In “ Triloki nath Singh vs Anirudh Singh, it was held that the suit for declaration which was filed before civil court was not maintainable. In the light of order 23 rule one (3) of CPC. The bar also applies to strangers to compromise proceedings not being a party to the compromise decree will confer the party the factual right to invalidate the compromise decree passed by the high court.
In “Sri Surya developers promoters Versus N Sailesh Prasad & ors”, it was held that no independent suit could be maintained against the compromise decree. The main objective of the adjudicating forums is to attain conclusive passages. In order to avoid lengthy litigation. The intent of the legislation is to bar additional litigation where there exist a valid agreement between the parties and the lower court was right in rejecting the claim of the grounds that relieves sought to challenge the compromise decree would not be maintainable.
In Hulas ravi Versus K B.Baas and Co Case:
-Sub-rule one of the rules one of Order 23 CPC confers an unqualified right on the plaintiff to withdraw the suit at any time. Since an appeal is a continuation of the suit, the right of the plaintiff to withdraw from the suit in hours, even at the appellate stage. The Supreme Court in the case of Hulas Ravi versus KB Baas & co observed as follows:
-The Language of the order 23 rule one sub-rule 1 CPC gives an unqualified right to a plaintiff to withdraw from the suit and if no permission to file a fresh suit is sought under sub-rule three of that rule, the plaintiff becomes liable for such cost as the court may award and become precluded from instituting any fresh suit in respect of that subject matter under sub-rule four of that rule, there is no provision in the code of civil procedure which requires a court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it.
The above-quoted observation of the supreme court rendered the view taken by a single judge of the high court at Allahabad in the case of Kedar Nath Vs Chandra Kiran Yoga when the plaintiff withdraws from the suit without seeking permission contemplated under sub-rule 2, he is precluded from instituting any fresh suit in respect of the subject matter or the claim made in the suit so withdrawn.
CONSENT OF CO-PLAINTIFF NOT REQUIRED WHEN CAUSE OF ACTION OF THE WITHDRAWING PLAINTIFF IS SEPARATE
Examined by the high court at Calcutta in Baidyanath Nandi and others Vs Shyama Sundar Nandi and others (Baidyanath) order 23 rule 1 (3) of the CPC provides that if a plaintiff desires to withdraw from the suit with liberty to institute a fresh suit in respect of the subject-matter of such suit, then such plaintiff must seek the permission of the court in its application for withdrawal.[7] Further, order 23, rule 1 (4) of the CPC stipulates that if the plaintiff withdraws from the suit without the leave of the court under order 23, rule 1 (3) of the CPC, then the plaintiff shall be precluded from instituting any fresh suit in respect of the subject matter.[8] The question that arose in Baidyanath was whether a plaintiff required the consent of other co-plaintiffs to withdraw from the suit, if such a plaintiff did not want any liberty to institute reserving liberty to institute a fresh suit in respect of the same matter, the consent of the co-plaintiff is not necessary.
The Division Bench in Baidyanath also referred to order 1, Rule 1 of the CPC to point out two possible scenarios which may arise.
⦁When the cause of action is vested jointly in all the co-plaintiff, it was held that in such a scenario, withdrawal from the suit by one co-plaintiff would be the prejudice of the remaining co-plaintiffs. Therefore, it was held that a co-plaintiff will not be allowed to withdraw from the suit without the consent of the other co-plaintiffs in this scenario. The high court at Calcutta opined that in such cases, the co-plaintiff who withdraws from the suit should be made a proforma defendant so that the suit does not fail as a result of defect of parties.
⦁When the cause of action of the withdrawing co-plaintiff is separate from that of the other co-plaintiff. In this scenario, the high court at Calcutta held that as the co-plaintiff desiring to withdraw from the suit has a separate cause of action, such co-plaintiff can always be allowed to withdraw without the consent of the other co-plaintiff, as such withdrawal would not affect the rights of the remaining co-plaintiff to continue the suit.
⦁This question was revisited by the high court at Calcutta in Mihir Kumar Talukdar vs Pradip Kumar Sengupta and others. It was observed that a decision on the issue of applicability of order 23, rule 1(5) of the CPC would necessitate a close examination of the bundle of facts giving rise to the plaintiff’s actionable claim and the relief that they seek therein. The high court at Calcutta thus held that if a plaintiff who wishes to withdraw from a suit has a separate cause of action from the other co-plaintiffs, and if such withdrawal has no adverse effect on the other co-plaintiff, the consent of the co-plaintiff will not be required for such withdrawal.
THE CONSENT OF CO-PLAINTIFFS REQUIRED EVEN IF FRESH SUIT IS NOT INTENDED TO BE INSTITUTED
The high court of Punjab and Haryana in Kuldip Singh and others vs. Kaushalya Devi and others took notice of the effect of this amendment and clarified that the withdrawal by a plaintiff from a suit, whether with liberty to file a fresh suit or without such liberty, is subject to the prior consent of the co-plaintiff in the suit.[9]
EFFECT ON THE WITHDRAWING PLAINTIFF:
In case the withdrawal plaintiff is forced to continue with the suit as a proforma defendant, the presence of such proforma defendant during the proceedings of the suit is mandated only as and when required for the essential adjudication of the dispute. This may include the production of documents in possession of the proforma defendant, the need for the proforma defendant’s statement on a particular point of fact, etc. The purpose of the proforma defendant is to assist the court in arriving at the correct conclusion. The judgement ultimately passed in such suit is binding upon the proforma defendant even though the latter is only a formal party.
It is pertinent to note, however, that such participation of a withdrawing plaintiff, who is unwilling to continue with the suit, costs such withdrawing plaintiff both at the time and money, as his appearance either in person or through his advocate may be required [10]
CONCLUSION
It is clear that any of the co-plaintiffs instituting a suit based on a joint cause of action cannot withdraw from the suit if their withdrawal affects the rights of the other co-plaintiffs. In this regard, it is immaterial whether the plaintiff desiring to withdraw has sought leave to institute a fresh suit or not. It is also pertinent to note that in practice, co-plaintiffs, whose presence is necessary for the effective disposal of a suit, wish to withdraw from such suit, such co-plaintiffs are often transposed as proforma defendants in order to ensure that all or any of the matter in controversy between the parties are conclusively settled. The aforementioned practice is in furtherance of the policy to avoid multiplicity of litigation.
However, if the cause of action of a plaintiff is separate and distinct from that of the other co-plaintiffs such that the former’s withdrawal from the suit will affect the rights of the latter, in such cases the plaintiff is free to withdraw from the suit without the consent of other co-plaintiffs.[11]
References:
https://lawrato.com/indian-kanoon/cpc/order-23
[1] 1
Shaheen Banoo, Withdrawal & Adjustment of the Suit As Delineated under Civil Procedure Code, 1908 – An
Assessment, Symbiosis International University, Symbiosis Law School, Pune, March 20, 2020
[2] Sonal Kumar Singh , Anshuman Gupta and Nabeel Wasim Malik, Withdrawal Of A Plaintiff From A Suit –
Do Co-Plaintiffs Have A Say?, 12 March 2021
[3] Code of Civil Procedure, 1908, Order XXIII, Rule 1(1)
[4] by Dhruv S. Patel, Decoding Order 23 Rule 1(3) of Civil Procedure Code, 1908: Withdrawal of Suit and Institution of Fresh Suit on Same Cause of Action and its Finer Nuances, July 29, 2021…
[5] Mr Sonal Kumar Singh, Anshuman Gupta and Nabeel Wasim Malik, Withdrawal Of A Plaintiff From A Suit ‘ Do Co-Plaintiffs Have A Say?, 12 March 2021
Keywords: Order 23 rule 1 (3) CPC: Withdrawal Of A Plaintiff From A Suit – Do Co-Plaintiffs Have A Say?
