I. 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 withdrawing from such a 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. 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.

This piece aims to analyse the jurisprudence propounded by Indian courts on this issue and recommends the factors to be taken into consideration by litigants who are suing in unison with other parties.

II. RIGHT OF A PLAINTIFF TO WITHDRAW FROM A SUIT

Order 23 of the CPC governs the rules pertaining to the 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 a part of his claim at any time after the institution of a suit.1 As soon as an application is filed under this sub-rule, the withdrawal of the suit is complete and such withdrawal is not dependent on the court's order.2 The court's permission is only required in case the plaintiff desires to institute a fresh suit for the same cause of action.3

1) Consent of co-plaintiffs required for withdrawal from suit

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, severally or in the alternative, may be joined in one suit as plaintiffs. The parties inter-se are referred to as "co-plaintiffs".

Rule 1(5) of Order 23 of the CPC provides that in case of multiple plaintiffs, any single plaintiff shall not be allowed to abandon the suit or part of his claim without the consent of the other plaintiffs. This sub-rule reads as follows: "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."

The High Court of Judicature at Bombay in Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel4 has held with respect to Rule 1(5) of Order 23 of the CPC that the right of a plaintiff to withdraw his suit is not absolute in all cases and may be controlled by the rights existing in other parties to the suit. The High Court of Judicature at Madras expanded on the aforementioned finding of the High Court of Judicature at Bombay in A.M. Ramaswami Chettiar v. Rengan Chettiar and Others5 ("Chettiar"), and held that if one person engages with others to institute a suit, he ought not to be allowed to withdraw from the suit if such action will be to the detriment of his co-plaintiffs in the conduct of the proceedings.

The High Court of Judicature at Madras in Chettiar interpreted the language used under Order 23, Rule 1(1) of the CPC, and held that while leave of the court for withdrawing a suit under this provision is not required, the liberty to withdraw from the suit is not an absolute one. The High Court of Judicature at Madras observed that when there are more plaintiffs than one, the expression "plaintiff" as under Order 23, Rule 1(1) of the CPC must be read as all the plaintiffs collectively, and not so as to include only one amongst several plaintiffs. Thus, it was held that the court can refuse to allow one of several plaintiffs to withdraw from the suit if such a course is not consented to by the remaining plaintiffs and would be prejudicial to their interests.

The principles elucidated in the aforementioned judgments continue to be good law. The High Court of Delhi in Kasturi Lal Jain and Others v. Madan Lal Jain and Others6 has held that the court should not have allowed two plaintiffs to withdraw a suit on behalf of all the plaintiffs and should have served a notice on the other plaintiffs who did not consent to such withdrawal. In the aforementioned case, the Delhi High Court allowed the dismissed suit to be restored. The High Court of Judicature at Allahabad in Mohan Lal v. Nain Singh and Others7 has held that where a suit instituted by 3 plaintiffs has been withdrawn by only 2 of the aforementioned plaintiffs, without the consent of the third plaintiff, such withdrawal is non-est in the eyes of law.

In United India Insurance Co. Ltd. v. HMT Goods Carrier and Others,8 a suit was jointly instituted against a third party by an insurer and the insured party. During the pendency of the suit, the insured party entered into a compromise deed with the third party, and the suit was dismissed as withdrawn by the trial court. The High Court of Jammu and Kashmir in this case held that the insured party ought not to have withdrawn the suit without the consent of the insurer as the said act of withdrawing the suit had materially prejudiced the position of the insurer. It was also observed that the insured party could have abandoned only its part of the claim in the suit and the insurer, in that eventuality, had the right to continue with the suit by impleading the insured party as a proforma defendant. It was thus held that the order of the trial court allowing the insured party to withdraw the suit was against the mandatory provisions of Order 23, Rule 1(5) of the CPC.

2) Consent of co-plaintiffs not required when cause of action of the withdrawing plaintiff is separate

The principles elucidated in Chettiar were examined by the High Court at Calcutta in Baidyanath Nandi and Others v. Shyama Sundar Nandi and Others ("Baidyanath").9 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.10 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, Rule1(3) of the CPC, then the plaintiff shall be precluded from instituting any fresh suit in respect of such subject-matter.11 The question that arose in Baidyanath was whether a plaintiff required the consent of other co-plaintiffs for withdrawing from the suit, if such plaintiff did not want any liberty to institute a fresh suit. It was held therein that when one of the several plaintiffs desires to withdraw from the suit without reserving a liberty to institute a fresh suit in respect of the same matter, the consent of the co-plaintiffs 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:

  1. When the cause of action is vested jointly in all the co-plaintiffs: It was held that in such a scenario, withdrawal from the suit by one co-plaintiff would be to 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.
  2. When the cause of action of the withdrawing co-plaintiff is separate from that of the other co-plaintiffs: 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-plaintiffs, as such withdrawal would not affect the rights of the remaining co-plaintiffs to continue the suit.

This question was revisited by the High Court at Calcutta in Mihir Kumar Talukdar v. Pradip Kumar Sengupta and Others.12 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 plaintiffs' 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-plaintiffs, the consent of the co-plaintiffs will not be required for such withdrawal.

3) Consent of co-plaintiffs required even if fresh suit is not intended to be instituted

However, contrary to what was held in Baidyanath, a plaintiff now has to necessarily seek the consent of other co-plaintiffs before withdrawing from the suit, whether or not the withdrawing plaintiff wishes to file the suit afresh or not. The judgment in Baidyanath was passed under the unamended provision which provided: "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, this provision was amended by the Code of Civil Procedure (Amendment) Act, 1976, and it is now provided that the bar under Order 23, Rule 1(5) of the CPC is applicable to a withdrawal under both Rule 1(1) and Rule 1(3) of Order 23 of the CPC.

The High Court of Punjab and Haryana in Kuldip Singh and Others v. Kaushalya Devi and Others13 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-plaintiffs in the suit.

III. EFFECT ON THE WITHDRAWING PLAINTIFF

In case the withdrawing 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 production of documents in possession of the proforma defendant, need for the proforma defendant's statement on a particular point of fact, etc. The purpose of the proforma defendant becomes to assist the court in arriving at the correct conclusion. The judgment ultimately passed in such suit is binding upon the proforma defendant, even though the latter is only a formal party.14

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 time and money, as his appearance either in person or through his advocate may be required at any stage by the court. Since such continued participation of the withdrawing plaintiff is by operation of law, it is unlikely that the withdrawing plaintiff will be compensated for his costs by the co-plaintiffs who did not consent to his withdrawal from the suit.

IV. 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 matters 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 not affect the rights of the latter, in such cases the plaintiff is free to withdraw from the suit without the consent of the other co-plaintiffs.

It is therefore essential that parties pursing civil suits with other entities are aware of the nature of their cause of action, whether the same is inextricably linked to the cause of action of the its co-plaintiffs or whether it exists independently. Parties should also be aware of the consequences of its potential withdrawal from the suit, and assess whether the same would have an adverse effect on the rights of its co-plaintiffs. Transversely, it is also important that parties which stand to be adversely affected from their co-plaintiff's withdrawal are aware of their rights to seek for restoration of the suit or transposition of the withdrawing plaintiff as a proforma defendant, as the case may be.

Footnotes

1. Code of Civil Procedure, 1908, Order XXIII, Rule 1(1).

2. Anil Dinmani Shankar Joshi v. Chief Officer, 2004 106 (2) Bom. LR 401; Manoramya Resorts and Hotels Pvt. Ltd. v. Tinaben Behram Mehta, Civil Application No. 1 of 2019 in R/Special Civil Application No. 3409 of 2007.

3. Code of Civil Procedure, 1908, Order XXIII, Rule 1(3) and (4).

4. AIR 1925 Bom 425.

5. AIR 1933 Mad 824.

6. I.A. Nos. 11026 and 11051/2006 in C.S. (OS) No. 714/1982.

7. 2019 (2) ADJ 371.

8. 2008 (50) Civil CC.

9. AIR 1943 Cal 427.

10. Code of Civil Procedure, 1908, Order XXIII, Rule 1(3).

11. Code of Civil Procedure, 1908, Order XXIII, Rule 1(4).

12. AIR 2011 Cal 211.

13. (2009) ILR 1 Punjab and Haryana 936.

14. Sk. Manzoor v. Abdus Salam, (2011) 1 CAL LT 14 (HC).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.