1. The 213 respondents in this Revision Petition filed a regular Original Suit No. 218 of 1964 before the Munsiff at Belgaum against the petitioner, Amalgamated Electricity Company Limited, claiming certain reliefs regarding rates for electricity supplied by the Petitioner-Defendant. Sometime thereafter, more than 100 persons as plaintiffs filed another suit No. 263 of 1964 before the same Courtagainst the same defendant claiming similar reliefs. The second mentioned suit started as a representative suit under Order 1, Rule 8 of the Code of Civil Procedure, I am told that by some subsequent consent order, the suit has been confined to the named plaintiffs therein.
2. On 17-4-1967, the plaintiffs in the earlier suit (Respondents in this petition) filed an application praying that:
'the plaintiffs may be given liberty to withdraw the suit with permission to file another suit with liberty to plaintiffs to include themselves as plaintiffs in O.S. 263 of 1964.'
In the affidavit in support of it, it is stated that after the suit of the respondents, another suit has been filed as a representative suit, that question in both the suits are same, that any decree in the representative suit will also bind the whole body of the consumers of electricity and that in those circumstances the plaintiffs propose to withdraw the suit 'with permission to file a fresh suit for the same relief on the same cause of action to get the benefit of the decree passed in R.O.S. No. 263 of 1964.'
3. The defendant filed a statement claiming that the plaintiffs should be directed to pay costs at the higher rate for the reasons set out in the statement and that certain deposits made pursuant to interim orders may be given back to him to the extent they relate to the suit sought to be withdrawn and that further deposits may also be likewise paid.
4. Thereupon the plaintiffs filed another statement to the effect that the application for withdrawal of the suit is not pressed.
5. Accordingly, the Munsiff has dismissed the application for withdrawal.
6. In this Revision Petition by the defendant, the main contentions are:
(1) that the order of dismissal amounting to grant of permission to withdraw the original application to withdraw the suit was passed without hearing the defendant's counsel;
(2) that liberties sought to be reserved are not of the type permissible under Sub-rule (2) of Rule (1) of Order XXIII of the Code of Civil Procedure which should therefore be treated as deleted or stand deleted as totally ineffective and that therefore all that remained of the application was the permission to withdraw, and
(3) that in such an event, the application must be regarded as an application made under Sub-rule (1) of Rule 1 of Order XXIII and that there is no question of the plaintiffs being permitted to withdraw such an application.
7, As I have heard the counsel on merits, the first grievance no longer exists.
8. Briefly, the argument is that a plaintiff who has a right to file a suit has also a right to withdraw the suit and that such a right is recognised by Sub-rule (1) of Rule 1 of Order XXIII and subject to his taking consequences as set out in Sub-rule (3) thereof, there is nothing to prevent the plaintiff from withdrawing the suit, and that therefore the moment he files an application to withdraw the suit, it must be regarded as having become immediately effective because no judicial order by the Court is required to be passed thereon. The next step in the argument is that if an application purporting to be under Sub-rule (2) of Rule 1 of Order XXIII is made reserving liberty or setting out conditions for withdrawal which are not within the scope of the said rule, the offending portions of the application should be regarded as so ineffective as to convert the application Into one under Sub-rule (1) itself with the same result as stated above.
9. It is pointed out that the liberty sought to be reserved in the application under consideration viz., that of getting themselves impleaded as plaintiffs in another suit, is not a sort of liberty which can be ordinarily asked for or granted Sub-rule (2) of Rule 1 of Order XXIII. It is also pointed out that permission to file a fresh suit so as to get the benefit of the decree in the representative suit is an unnecessary prayer and thoroughly inconsistent with the immediately preceding statement that the decree in the representative suit will be binding on all persons represented by the plaintiffs therein. As both these grounds are so obviously beyond the scope of Sub-rule (2) of Rule 1 of Order XXIII, it is urged that they are for the reasons stated to be regarded as ineffective.
10. Reliance is also placed on the observations of the Supreme Court in Civil Appeal No. 897 of 1964 (reported in : 3SCR886 ), Hulas Rat Baij Nath v. K.B. Dass and Co. That was an account suit in which an application was filed expressly under Sub-rule (1) of Rule 1 of Order XXIII without reserving any liberty for filing a fresh suit or taking any other steps. The defendant therein had objected to permission being granted to the plaintiff to withdraw the suit on the ground that the suit being one for account, there is always the possibility of the result of account turning to be in favour of the defendant. Upon facts, however, no preliminary decree had been passed and there was no such averment in the written statement as to amount to a set off or a counter-claim. In these circumstances, the Supreme Court observed that there is no provision in the Coda of Civil Procedure which requires the Court to refuse permission to withdraw the suit and compel the plaintiff to pro-ceed with it. They qualified their statement by observing that it is of course possible that different considerations may arise where by reason of a claim of set off or otherwise the defendant might have acquired some vested right in the continuation of the suit.
11. On the question whether an application purporting to be one made under Sub-rule (2) should be regarded for all legal purposes as one made under Sub-rule (1) if the liberty reserved or the statement of reasons set out in the application is not within the scope of Sub-rule (2), there is no direct authority In the said decision of the Supreme Court. The learned counsel has also frankly stated that there is no direct authority for the proposition but Insisted that upon principle, that should be the legal effect.
12. It appears to me that principles are to be derived or gathered from the fact that the absolute right of withdrawal and withdrawal with liberty to file a fresh suit on the same cause of action arc treated as two distinct and different matters by Rule 1 of Order XXIII. The first one, while preserving liberty to a plaintiff to withdraw his suit, visits him with certain consequences set out in Sub-rule (3). It is only if a plaintiff wishes to escape those consequences that he is required to comply with the terms of Sub-rule (2). The said rule vests a power in the Court to decide whether, in the circumstances stated, the plaintiff should be relieved of adverse consequences following upon a formal defect or upon circumstances arising out of proceedings, and permitted to file a fresh suit. Whereas a choice made by the plaintiff under Sub-rule (1) may be immune from any obstruction being placed in its exercise either by the opposing party or by the Court itself, an attempt to withdraw the suit with liberty to approach the Court again is expressly made subject to the Court being satisfied as to the particular set out in Sub-rule (2). On principle therefore, an application by a plaintiff under Sub-rule (2) cannot be treated on a par with an application by him to exercise the absolute liberty given to him under Sub-rule (1); it is actually a prayer for a concession from the Court after satisfying the Court regarding the existence of circumstances justifying the grant of such concession. If so, it is, like any other application, a prayer which is capable of being withdrawn before it is granted or refused.
13. If an application under Sub-rule (2) Is heard on merits and at the conclusion the Court is not satisfied that circumstances exist justifying the grant of permission to withdraw with liberty to file a fresh suit, the Court could proceed to dismiss the application, in which case the suit remains on file. If such is theconsequence of an actual adverse order made by the Court on an application, I do not think the plaintiff can be placed in a worse situation by stating that the application must be regarded as one under Sub-rule (1) and therefore incapable of being withdrawn, or as having the immediate result of withdrawing the suit. It will be seen that in such an event, the plaintiff not only loses the right of filing a fresh suit but also loses even the possibility of Retting such relief as he may be in a position to get in the existing suit. I do not think, an interpretation which leads to such a consequence should be readily accepted.
14. There is, thus, no compelling reason why order of the Munsiff should be interfered with, under Section 115 of the Code of Civil Procedure.
15. The Revision Petition is dismissed, No costs,
16. Revision dismissed.