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Judgment
Jayant Banerji, J
Heard the learned counsel for the petitioner.
This petition has been filed seeking following relief:
a) Issue an Order or Direction or Writ in the Nature of Certiorari Quashing the order dt.05.04.2023 passed by the III Addl. Senior Civil Judge and JMFC at Davanagere in O.S.No.105/2021, vide Annexure -J, Reject the Not press Memo filed by Defendant No.1 by allowing the petition in the interest of justice and equity.
b) Grant such other relief which this Hon'ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity.
Admittedly, the petitioner is defendant No.6 who is the General Manager of Shivasahakari Bank Niyamitha, at the Administrative Office, Old Hospital, Davanagere. It appears that a suit was filed by the plaintiff-respondent No.1. A memo was filed on 08.09.2022 by the sole plaintiff seeking withdrawal of the suit without liberty. When the matter was listed on 05.04.2023, the trial Court noted that defendant No.6, that is petitioner herein, was absent and that no objections were filed by defendants No.6 and 7 to the memo. No one was present on behalf of defendant No.6. Accordingly, and since no liberty was sought, the suit was dismissed as withdrawn.
The contention of learned counsel for the petitioner is that objections were filed by the petitioner on 04.11.2022 and therefore the trial Court was at error in dismissing the suit as withdrawn.
However the fact remains that after the institution of the suit, the plaintiff may, against all or any other defendants abandon his suit or abandon a part of his claim. When such an application is moved and where the plaintiff is not a minor, even the leave of the Court is not required for that purpose. It is admitted to the learned counsel for the petitioner that the plaintiff is not minor. Moreover, sub-Rule (5) of Rule 1 of Order XXIII of Code of Civil Procedure, 1908 (CPC) provides a bar on the Court to permit one of several defendants to abandon a suit or part of the claim or to withdraw any suit or part of the claim without the consent of other plaintiffs. That is not the case on hand. The plaintiff being dominus litus has got a right to withdraw the suit as provided under Order XXIII of CPC.
This petition is misconceived and it is accordingly dismissed.