IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 263 of 2011 Decided on: 29.09.2011 Mohinder Singh …Petitioner. Versus Gian Chand & another …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Pushpinder Jaswal, Advocate. For the respondents: Mr. Rakesh Chandel, Advocate, for respondent No. 1. Mr. Tarun K. Sharma, Advocate, for respondent No. 2. Deepak Gupta, J. (Oral) This petition is directed against the order dated 15.06.2011 passed by the learned Civil Judge (Junior Division), Court No. III, Hamirpur, whereby the application filed by the petitioner, who was one of the plaintiffs before the learned trial Court, for deletion of his name had been rejected. 2. Brief facts of the case are that the petitioner, alongwith one Shri Rumel Singh, filed a suit against defendant, Gian Singh, in which it was claimed that the defendant be restrained from converting the suit land into personal use by way 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- of construction or in any manner from changing the nature of the suit land. The suit was contested and written statement was filed by the defendant. In the year 2011, the petitioner, Mohinder Singh, filed an application that he had filed the suit inadvertently and does not want to pursue the suit. He further stated that he has no interest in the suit and, therefore, his name be deleted from the array of plaintiffs. This application was rejected by the learned trial Court on the ground that the case was at the stage of defendant's evidence and the plaintiff-applicant cannot be allowed to withdraw the present suit and permitted to get his name deleted from the array of plaintiffs. 3. Order XXIII of the Civil Procedure Code deals with withdrawal and adjustment of suits. Order XXIII Rule 1 CPC permits the plaintiff to abandon his suit or abandon a part of his claim. Sub-rule (3) of Order XXIII Rule 1 CPC authorizes the Court to permit a plaintiff to withdraw a suit with liberty to institute a fresh suit on certain grounds. Sub-rule (5) of Order XXIII Rule 1 CPC 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 plaintiffs.” 4. A bare perusal of the aforesaid provision shows that when a suit is filed by several plaintiffs, then the Court cannot permit one of the several plaintiffs to abandon the suit or abandon a part of his claim under sub-rule (5) or to withdraw the same under sub-rule (3) without the consent of the other plaintiffs. -: 3 :- 5. It is, thus, clear that when there are two or more plaintiffs and any one of the plaintiffs wants to withdraw his name from the plaint or wants to abandon his suit or any part of his claim, then he can be permitted to do so only when the other plaintiffs consent to the same. 6. In the present case, the other plaintiff is not consenting to the withdrawal by the present petitioner. Mr. Pushpinder Jaswal, learned counsel appearing for the petitioner, has drawn my attention to Order I Rule 10 CPC and submits that the Court, at any stage, can allow the addition or deletion of any party and if the plaintiff-petitioner is not a necessary or proper party, his name can be deleted from the array of parties. There can be no quarrel with this proposition of law and normally, this Rule would have applied, but when sub-rule (5) of Order XXIII Rule 1 CPC clearly provides that in case of a suit filed jointly by two or more plaintiffs, one of the plaintiffs can be permitted to withdraw the suit only if the other plaintiffs consent to the same, the provisions of Order XXIII Rule 1 sub-rule (5) shall prevail over the provisions of Order I Rule 10 CPC. Therefore, the order of the learned trial Court rejecting the application is fully justified and calls for no interference. 7. With these observations, the petition is rejected. No order as to costs. (Deepak Gupta) Judge September 29, 2011 (rajni)