PREMJI TULSIDAS SAIT Vs. PSSETHURAMASWAMI AIYAR

JUDGEMENT

(1.) This is a civil revision petition filed against the order of the Subordinate Judge of Coimbatore in I. A. No. 554 of 1939 on his file. That application was made by the third plaintiff in O.S. No. 33 of 1939 for an order permitting him under Order 23, Rule 1 read with Section 151, Civil Procedure Code to withdraw from the suit and to strike his name off from the record. The learned Subordinate Judge dismissed the application and hence the revision petition.

(2.) O.S. No. 33 of 1939 was instituted by the first two plaintiffs along with the petitioner for the specific performance of a contract entered into between the first two plaintiffs and the defendant by which the defendant had agreed to reconvey certain properties purchased by him from the former. The properties consisted of a mill and premises and also certain agricultural lands "which belonged to the first two plaintiffs. They sold those properties for a consideration of Rs. 26,000 of which Rs. 17,000 was actually advanced by the defendant and the balance was undertaken to be paid by him towards a Government loan taken by the first two plaintiffs on the security of the property conveyed. Simultaneously with the sale deed, an agreement was executed by the defendant to reconvey the properties on receipt of the moneys advanced by them for the purchase. It was mentioned in the plaint that a sum of Rs. 17,000 only had been advanced by the defendant and that the two plaintiffs were therefore entitled to reconveyance on payment of that sum only. The petitioner who was the third plaintiff was a financier of the first two plaintiffs, having agreed in pursuance of an agreement of 17 November, 1938 to advance the said sum of Rs. 17,000 in order to enable the first and second plaintiffs to obtain a reconveyance of the property from the defendant. The arrangement between the parties was that a further sum of Rs. 3,000 should be advanced by the petitioner and for the consolidated amount of Rs. 20,000 the first and second plaintiffs should give an usufructuary mortgage over the properties sought to be recovered in the suit. It also appears that on the date on which the suit was instituted a mortgage was executed by the first and second plaintiffs in favour of the third plaintiff by which the former mortgaged the right to obtain a reconveyance from the defendant for a sum of Us. 50 advanced by the third plaintiff.

(3.) On the facts mentioned, the parties apparently considered that the suit to obtain a reconveyance should be instituted by all the three plaintiffs. The third plaintiff who had unsuccessfully attempted to tender the sum of Rs. 17,000 before suit deposited the money into Court along with the plaint. Disputes and differences seem to have arisen between the first two plaintiffs on the one hand and the third plaintiff on the other after the institution of the suit which led to the third plaintiff desiring to withdraw from the suit and calling back the money deposited by him. Two applications were accordingly taken out by him; LA. No. 554 of 1939 for leave to withdraw from the suit and I.A. No. 555 of 1939 for refund of the Rs. 17,000 paid into Court as aforesaid. The learned Judge was of opinion that the petitioner should not be allowed to withdraw from the suit as that course would operate to the prejudice of the remaining plaintiffs. He held that it was not necessary for him to obtain the consent of the other plaintiffs as he was neither asking for liberty to institute a fresh suit under Order 23, Rule 2 nor seeking to avoid the consequences which Order 23, Rule 3 imposes upon a plaintiff who withdraws from the suit without the permission of the Court. He seems to have accepted the view laid down in Nilappa Gouda V. Basan Gouda (1926) 29 Bom.L.R. 299 and Mohamaya Chowdhrain V/s. Durga Churn Shaha(1881) 9 Cal.L.R. 332, that sub-rule (4) does not govern an application for the Unconditional withdrawal of a suit under sub-rule (1). My attention was called on behalf of the respondents to Mst. Ram Deo V/s. Mst. Baku Rani (1921) I.L.R. 1 Pat. 228 and Upputuri Punnayya v. Polavarapur Lingayya and it was argued that in the light of the decisions in these cases, sub-rule (4) should not be limited in its application to sub-rules (2) and (3) only but that it should be held to govern sub-rule (1) as well. In none of these cases has the question been discussed or the reasoned view put forward in Mohamaya Chowdhrain V/s. Durga Churn Shaha (1881) 9 Cal.L.R. 332 and Nilappa Gouda V/s. Basan Gouda (1926) 29 Bom.L.R. 299, considered. In fact, these two cases do not appear to have been cited before the learned Judges who decided them. The point was noticed in a Bench decision of this Court in Ramasami Chettiar V/s. Rengan Chiettiar but the learned Judges did not find it necessary to decide it and based their decision upon a different point altogether. In the absence of any binding decision, I am inclined to follow the view propounded in Mohamaya Chowdhram V/s. Durga Churn Shahai (1881) 9 Cal.L.R. 332 and Nilappa Gouda v. Basan Gouda (1926) 29 Bom.L.R. 299 which proceeded upon the specific words contained in sub-rule (4) which is to the following effect: 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. Rule 1 does not contemplate the necessity for a plaintiff to obtain the permission of the Court to withdraw a suit or abandon part of his claim when he does not seek for liberty to institute a fresh suit on the cause of action withdrawn. It is only in case where the permission of the Court is required that Sub-rule (4) is called into operation and the Court is not to give the permission when the other plaintiffs did not accord their consent.