BAIDYANATH NANDI S/O TRAILAKHYA NATH NANDI Vs. SHYAMA SUNDAR NANDI S/O HATI NANDI MANAGING SHEBAIT OF SRI SRI ISWAR LAKSHMI JANARDAN THAKUR

JUDGEMENT

(1.) These two rules are directed against certain orders of the Subordinate Judge, First Court, 24-Parga-nas, made in Title Suit No. 53 of 1940 pending before him by which permission was refused to the petitioners, who are some of the plaintiffs in that suit, to withdraw from it and to have their names struck off the record as parties plaintiffs. The suit was instituted by a large number of persons who purported to be shebaits of a certain deity known as Lakshmi Janardan Jew established by the Nandis of Jamgram in the district of Hooghly and the defendants are all co-shebaits of the plaintiffs. The prayers in the plaint are of a twofold character. The first prayer is for a declaration that plaintiff 1 has been duly elected one of the managing shebaits of the deity in place of defendant 1 who has been validly removed by the majority of the shebaits in accordance with the provisions of the deed of endowment. The second and the alternative prayer is for removal of defendant 1 as one of the managing shebaits, by the Court, if lie has not been validly removed by his co-shebaits already, on grounds of misappropriation and breach of trust. On 24 February 1941 two of the plaintiffs, namely, plaintiffs 10 and 30 filed applications before the Subordinate Judge praying for withdrawal of their names from the category of plaintiffs on the ground that they came to realise during the progress of the suit that a protracted litigation of this character was sure to ruin the debutter estate. On 1 December 1941, applications with identical prayers were made on behalf of plaintiffs 2 to 5 and 60 and 62. All these applications came up for hearing on 7 January 1942 and the Court by its order made on that date allowed the application of plaintiff 10 alone which was not opposed by the other plaintiffs and permitted him to withdraw from the suit as plaintiff and be added a party defendant. The applications of the other plaintiffs who were not present on that date were rejected, the Court being of opinion that such withdrawal could not be allowed without the consent of the remaining plaintiffs whose interests were likely to be prejudiced by it. On 30 April 1942 a fresh application was made by plaintiffs 2 to 5 and 60 and 62 practically for reconsideration of the order of dismissal made on 7 January 1942 and explaining the circumstances under which they were not able to appear and press their application on the date of hearing.

(2.) Another application was made by plaintiff 63 and he too prayed for permission to withdraw from the suit as plaintiff and be made a party defendant, if necessary. Both I these applications were rejected by the Court and the several plaintiffs who were not allowed to withdraw from the suit have now come up in revision to this Court. These two substantial questions which arise for determination in these two rules are: (1) whether Order 23, Rule 1, Sub-rule (i), Civil P.C., governs a case like this and prevents some of the plaintiffs in a suit from withdrawing without the consent of the rest; and (2) whether apart from Sub-rule (4) of Order 23, Rule 1, Civil P.C., the Court is entitled in the interests of justice to refuse one of several plaintiffs to withdraw, or impose other restrictions on him, if such course is prejudicial to the interests of the other plaintiffs.

(3.) For determination of the first point, it is necessary to consider carefully the several " provisions contained in Order 23, Rule 1, Civil P.C. Sub-rule (1) gives the plaintiff a right to withdraw from a suit or abandon a portion of his claim against all or any of the defendants at any stage of the suit. This he can do of his own motion and no permission of the Court is necessary. If, however, he desires to withdraw from the suit reserving a right to bring a suit on the same cause of action he has got to seek the permission of the Court. This is provided for in Sub-rule (2) of Order 23, Rule 1, Civil P.C., which lays down the circumstances under which alone such permission could be granted. Sub-rule (8) points out the consequences which would follow if the plaintiff withdraws from a suit or abandons part of his claim without the permission referred to in sub-rule (2). He shall be liable to pay such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject- matter or such part of the claim. Sub-rule (4) then provides as follows: 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.