Rule 1(5) of Order 23 of the CPC provides that in case of multiple plaintiffs, any single plaintiff shall not be allowed to abandon the suit or part of his claim without the consent of the other plaintiffs. This sub-rule 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 plaintiff."
The High Court of Judicature at Bombay in Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel4 has held with respect to Rule 1(5) of Order 23 of the CPC that the right of a plaintiff to withdraw his suit is not absolute in all cases and may be controlled by the rights existing in other parties to the suit. The High Court of Judicature at Madras expanded on the aforementioned finding of the High Court of Judicature at Bombay in A.M. Ramaswami Chettiar v. Rengan Chettiar and Others5 ("Chettiar"), and held that if one person engages with others to institute a suit, he ought not to be allowed to withdraw from the suit if such action will be to the detriment of his co-plaintiffs in the conduct of the proceedings.
Order 23, Rule 1(3) of the CPC provides that if a plaintiff desires to withdraw from the suit with liberty to institute a fresh suit in respect of the subject-matter of such suit, then such plaintiff must seek the permission of the court in its application for withdrawal. Further, Order 23, Rule 1(4) of the CPC stipulates that if the plaintiff withdraws from the suit without the leave of the court under Order 23, Rule1(3) of the CPC, then the plaintiff shall be precluded from instituting any fresh suit in respect of such subject-matter.
In your case if the other LRs of the deceased plaintiff do not attend the court even after receiving the summons, they may be set exparte.
