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Judgment
Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.
The present petition challenges order dated 28.01.2022, passed below Exhibit 76 by the 2nd Joint Civil Judge, Junior Division, Buldhana, in R.C.S. No. 8 of 2013. By way of said order, the application filed by the plaintiffs for withdrawal of suit with permission to file a fresh suit was allowed. The Trial Court permitted withdrawal with liberty to file a fresh suit on the same cause of action, subject to law of limitation, by resorting to provisions under Order XXIII Rule 1(a) of the Code of Civil Procedure.
The facts which are more or less not in dispute are as under:
The respondents herein preferred a suit being R.C.S. No. 8 of 2013, for declaration that an agreement dated 20.04.2012 executed between the parties is illegal and not binding on them. The suit also prayed for a permanent injunction restraining the defendants from alienating the suit property. After the pleadings were completed, the parties went on trial. In that scenario, out of the 22 plaintiffs, only 12 plaintiffs filed an application below Exhibit 76 under Order XXIII Rule 1 for withdrawal of suit with liberty to file a fresh suit. The petitioners herein filed their reply and opposed the application. However, the Trial Court, vide impugned order, has allowed the application.
I have heard Mr. Kalwaghe, learned Counsel for the petitioners, and Mr. Deo, learned Counsel for the respondent Nos. 1 to 10, 12, 15(i) to 15(iii) and 17, and Mr. S.N. Nandeshwar, learned Counsel for respondent No.14.
It is the contention of Mr. Kalwaghe, learned Counsel for the petitioner that as per the provisions of Order XXIII Rule 1(5), liberty cannot be granted to the plaintiffs to withdraw the suit in absence of consent of all the plaintiffs, when there are more than one plaintiffs. He draws my attention to the provisions of Order XXIII Rule 1(5) thereof. He, therefore, submits that the order of the Trial Court is bad in law since, admittedly, consent of all the plaintiffs was not obtained. He, however, in his fair-mindedness, submits that such a ground was not taken in the reply filed to the application in the Trial Court, but is taken in the petition.
Mr. Deo, learned Counsel for respondents also admits that a suit in which there are more plaintiffs than one cannot be permitted to be withdrawn unless there is a consent of all the plaintiffs. He points me out the application filed before the Trial Court, in which, names of all the plaintiffs were mentioned; however, out of them, only 15 plaintiffs have signed the said application.
I have gone through the contents of the said application, as also the provisions of law mentioned supra. Order XXIII Rule 1 (5) authorizes the Court to permit all the plaintiffs to abandon a suit or a part of a claim only with the consent of the other plaintiffs. It, therefore, implies that the application filed for withdrawal has to be signed/consented by all the plaintiffs. Since this ground was not raised in the application at Exhibit 76, there was no occasion for the Court to deal with the same. Mr. Deo, learned Counsel, however, on instructions, submits that all the plaintiffs are ready to withdraw the suit filed by them, and even though they have not signed the said application, if Court grants them permission, they would file an application afresh with signature and consent of all the plaintiffs.
In that view of the matter, to subserve the ends of justice, following order is passed:
ORDER
The Writ Petition is allowed.
ii) The order passed below Exhibit 76 in R.C.S. No. 8 of 2013, passed on 28.01.2022, is quashed and set aside.
iii) Liberty is granted to the respondents i.e., the original plaintiffs to file a fresh application for withdrawal of suit.
iv) The Trial Court is directed to decide the said application afresh in accordance with law.
All the contentions of the respective parties are kept open.
The petition is allowed in above terms and disposed of as such. Rule accordingly.