1. The 1st plaintiff is the zamindar of Naduvasal. He succeeded his father, who died on August 18, 1923. On November 22, 1920, the father and son joined in executing a sale deed of the suit property for a sum of Rs. 30,000. After the 1st plaintiff had succeeded to the estate, on August 14, 1926, he mortgaged the same property to the 2nd plaintiff. Both plaintiffs then brought the present suit for a declaration that the sale deed of November 22, 1920, was invalid and inoperative beyond the father's life-time, under the terms of the Impartible Estates Act. The defendants, who were the vendees, filed their written statements and the suit was posted for settlement of issues when the 1st plaintiff applied to withdraw from the suit. This was objected to by the 2nd plaintiff, the mortgagee, but was eventually allowed. We have been unable to find any order upon the application to withdraw itself, but the result is so staled in the learned District Judge's judgment. Having thus allowed the 1st plaintiff to withdraw, the question was considered whether the 2nd plaintiff was entitled by himself to continue the suit and was answered in the negative. This latter question will only arise if we confirm the order allowing the 1st plaintiff to withdraw.
2. Under Sub-rule (1) of Rule 1 of Order XXIII, Civil Procedure Code, 'the plaintiff' may at any time after the institution of the suit withdraw it as against all or any of the defendants; Sub-rule (2) enables the court to permit the plaintiff to' withdraw from a suit with liberty to institute a fresh suit; and Sub-rule (3) relates to withdrawal without such permission. Sub-rule (4) runs 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.
3. The use of the word 'rule' supports the view that this qualification applies not only to Sub-rules 2 and 3 but also to Sub-rule (1). On the other hand, it has been pointed out that under Sub-rule (1) no permission of the court is necessary, so that Sub-rule (4), which contemplates an operation requiring such permission, is not suitably worded to apply to a withdrawal under Sub-rule (1). There is some authority for the view that Sub-rule (4) does not apply to Sub-rule (1). It was so held in Mohamaya Chowdhrain v. Durga Churn Shana 9 C.L.R.332, under the corresponding provision (Section 373) of the Code of Civil Procedure, 1877. That was a case of two co-plaintiffs and it was held that one could withdraw without the consent of the other under this provision of the Code. The matter came up in relation to an appeal in Nilappagouda Gondappagouda v. Basangouda Sangangouda 101 Ind. Cas. 318 : 29 Bom. L.R. 299 : A.I.R. 1927 Bom. 214, where a similar view was taken by Shah, J. Fawcett, J., while agreeing that in that particular case one of the appellants might be permitted to withdraw, and being inclined to accept the construction put upon the rule, reserved his opinion whether apart from the terms of the rule the court had not power to control a co plaintiff who desires to withdraw from a suit, if such withdrawal would operate to the prejudice of his co-plaintiffs. He referred to an English case In re Mathews; Oates v. Mooney (1905) 2 Ch. 460 : 74 L.J. Ch. 656 : 54 W.R. 75 : 93 L.T. 158, in which it was held that one of several co-plaintiffs has no absolute right lo withdraw from an action and have his name struck out, The reason of course is, that if one person engages with another or others to institute a suit, he ought not to be allowed to resile if such action will be to the detriment of his co-plaintiffs in the conduct of the proceedings. This, we think, is a perfectly valid principle and it finds support in the terms of Sub-rule (1) of Order XXIII, Rule 1, which says 'the plaintiff' may withdraw. When there are more plaintiffs than one the expression 'the plaintiff' must be read as all the, plaintiffs-collectively, and not so as to include one only amongst several plaintiffs. This principle has been recognised and acted upon in two cases cited before us, Tukaram Mahadu v. Ramachandra Mahadu 89 Ind. Cas. 984 : 49 B 672 : 27 Bom. L.R. 921 : A.I.R. 1925 Bom.425,and Upputuri Punnayya v. Polavarapu Lingayya : AIR1928Mad496 . Irrespective, therefore, of the question whether Sub-section (4) governs Sub-rule (1) we think that the court can refuse to allow one of several plaintiffs to withdraw if such a course is not consented to by the remaining plaintiff or plaintiffs and would be prejudicial to his or their interests. In the present case the 1st plaintiff, we think, having given the 2nd plaintiff a mortgage, presumably on the understanding that the sale was not binding after the father's death, ought' not to be allowed to abandon a suit intended to secure a declaration to that effect. We think accordingly that the withdrawal petition, I.A. No. 243 of 1926, should not have been allowed and we dismiss it. We further set aside the judgment and decree in O.S. No. 9 of 1926 and direct the lower Court to restore the suit to file and proceed with it according to law. The respondents will pay the appellant's costs of the appeal.
4. The appellant will be entitled to a refund of the court-fee paid upon the appeal memo under Section 13 of the Court Fees Act.