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Sachin1976 (Engineer)     06 June 2023

Withdrawing from civil lawsuit

Dear Sir/Madam

My father had filed a Civil lawsuit against my cousin related to possession of an ancestral house. The case was ongoing and now my father passed away. We are 5 legal heirs including my mother, elder brother and 2 elder sisters. Now my mother, both sisters and myself want to withdraw the case and my elder brother wants to continue. What is the correct process for doing this?..My elder brother says..."the court will send a notice when the next hearing is scheduled and we need not attend the court or respond to the notice. The court will consider that we have no interest in continuing and will allow him only to continue"..Is this true or correct process?..What will be the implications of not responding to the court notice? 


 5 Replies

T. Kalaiselvan, Advocate (Advocate)     06 June 2023

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.

Shashi Dhara   06 June 2023

Give GPA to your brother to continue suit as you are lrs all have to file  joint application to withdraw the suit if opposite object  court pass orders.

Sachin1976 (Engineer)     06 June 2023

Thank you Mr Kalaiselvan and Shashi for your reply. Just to explain my situation further...., both my sisters, myself and my mother have no interest in continuing with the case, but my brother wants to continue as he was actively involved since the beginning. We are in this situation now only because we are the legal heirs and our names appear in the warsa. We never consented to continue with the case in the first place. Can we just simply not respond to the court summons?..will it be enough for the court to consider that we have no interest in this case?

Shashi Dhara   07 June 2023

You can keep silent without engaging advocate so your brother can continue suit ,he himself can engage advocate ,if you have no interest  also the court will pass orders  which is binding for all  ,so simple you don't engage advocate ,don't attend court ,let your brother proceed.

Sachin1976 (Engineer)     07 June 2023

Thank you Shashi Dhara

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