Case Note & Summary
The petitioners, original plaintiffs No.5, 7, and 9, filed a civil revision petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) challenging the order dated 09.11.2020 passed by the Principal Civil Judge and JMFC at Humnabad in O.S.No.17/2019. The trial court had dismissed the suit as withdrawn based on a memo filed by respondent Nos.1 and 2 (original plaintiffs No.6 and 10). The suit was originally filed under Order I Rule 8 CPC, which is a representative suit. The petitioners contended that the suit could not be withdrawn without the consent of all plaintiffs and without permission of the court. The High Court examined the provisions of Order I Rule 8 CPC and held that in a representative suit, the plaintiffs represent the interest of others, and withdrawal requires court permission and notice to all parties. The trial court's order dismissing the suit as withdrawn without notice to the other plaintiffs was illegal. The High Court allowed the revision petition, set aside the trial court's order, and restored the suit to its original file and number.
Headnote
A) Civil Procedure - Representative Suit - Withdrawal of Suit - Order I Rule 8, Code of Civil Procedure, 1908 - Suit filed under Order I Rule 8 CPC cannot be dismissed as withdrawn based on a memo filed by only some of the plaintiffs without the consent of all plaintiffs and without permission of the court - The trial court erred in dismissing the suit as withdrawn without notice to the other plaintiffs and without following the procedure under Order I Rule 8 CPC - Held that the order dismissing the suit as withdrawn is illegal and liable to be set aside (Paras 1-10).
Issue of Consideration
Whether a suit filed under Order I Rule 8 of the Code of Civil Procedure, 1908 can be dismissed as withdrawn based on a memo filed by only some of the plaintiffs without the consent of all plaintiffs and without court permission
Final Decision
The High Court allowed the civil revision petition, set aside the order dated 09.11.2020 passed by the Principal Civil Judge and JMFC at Humnabad in O.S.No.17/2019, and restored the suit to its original file and number. The trial court was directed to proceed with the suit in accordance with law.
Law Points
- Representative suit under Order I Rule 8 CPC cannot be withdrawn by some plaintiffs without consent of all
- Order I Rule 8 CPC requires court permission for withdrawal
- Dismissal of suit as withdrawn without notice to all plaintiffs is illegal
Case Details
2021 LawText (KAR) (12) 7
Sri.D.P.Ambekar (for petitioners), Sri.Ameet Kumar Deshpande (for R1 & R2)
Syed Abdul Bari, Syed Abdul Basith Omer, Syed Abdul Wahab Zeeshan
Syed Imran, Syed Maisliuddin, The Chief Officer TMC Humnabad, Vasant S/O Chandrappa Patil, Mallappa S/O Sharanappa, Lingraj S/O Basavaraj, Rajapa S/O Gundappa, M.A.Samad, Shivakanta W/O Jaganath, Syed Taher Ali
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Nature of Litigation
Civil revision petition against order dismissing suit as withdrawn
Remedy Sought
Petitioners sought to set aside the trial court order dated 09.11.2020 dismissing O.S.No.17/2019 as withdrawn and restore the suit
Filing Reason
Trial court dismissed the suit as withdrawn based on a memo filed by only some plaintiffs without consent of all plaintiffs
Previous Decisions
Trial court dismissed O.S.No.17/2019 as withdrawn on 09.11.2020
Issues
Whether a suit filed under Order I Rule 8 CPC can be dismissed as withdrawn based on a memo filed by only some of the plaintiffs without the consent of all plaintiffs and without court permission
Submissions/Arguments
Petitioners argued that the suit being a representative suit under Order I Rule 8 CPC could not be withdrawn without the consent of all plaintiffs and without permission of the court
Respondents did not appear or contest the petition
Ratio Decidendi
A suit filed under Order I Rule 8 CPC is a representative suit where the plaintiffs represent the interest of others. Such a suit cannot be withdrawn by some plaintiffs without the consent of all plaintiffs and without permission of the court. The trial court erred in dismissing the suit as withdrawn without notice to the other plaintiffs and without following the procedure under Order I Rule 8 CPC.
Judgment Excerpts
The present civil revision petition under Section 115 of the Code of Civil Procedure (henceforth referred as 'CPC') is filed by the petitioners/original plaintiffs No.5, 7 and 9, aggrieved by the order dated 09.11.2020 passed by the learned Principal Civil Judge and JMFC at Humnabad (for short the 'Trial Court') in O.S.No.17/2019, by which the Trial court dismissed the suit filed under Order I Rule 8 of CPC as withdrawn upon a memo filed by the respondent Nos.1 and 2/original plaintiffs No.6 and 10.
Procedural History
The suit O.S.No.17/2019 was filed under Order I Rule 8 CPC. On 09.11.2020, the trial court dismissed the suit as withdrawn based on a memo filed by plaintiffs No.6 and 10. The petitioners (plaintiffs No.5, 7, and 9) filed the present civil revision petition under Section 115 CPC challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115, Order I Rule 8
