To understand the issue involved let us first read the law
ORDER XXIII withdrawal and adjustment of suits 1. Withdrawal of suit or abandonment of part of claim.—
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,—
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff—
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) 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.
In Robert Watson v. The Collector of Zillah Rajshahye Privy Council held that, “We have not been referred to any case, nor are we aware of any authority which sanctions the exercise by the Country Courts of India of that power which Courts of Equity in this Country occasionally exercise, of dismissing a suit with liberty to the Plaintiff to bring a fresh suit for the same matter. Nor is what is technically known in England as a nonsuit, known in those Courts. There is a proceeding in those Courts called a nonsuit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them.”
In Abdul Ghafoor v. Abdul Rahman (Allahabad)
The following two questions of law were referred to the Full Bench :
(1) Whether the words ‘other sufficient grounds’ in R. 1 (2) (b) of O. 23, Civil Procedure Code cover grounds other than those mentioned in R. 1 (2) (a) ?
(2) If the answer to the first question is in the affirmative, in what circumstances and on what principles interference under Section 115, Civil Procedure Code, can be justified?
It was held that:
the words ‘sufficient grounds’ in R. 1 (2) (b) of O. 23 of the Code cover grounds analogous to those mentioned in R. 1 (2) (a).
The second question referred to the Full Bench scarcely arises in view of the answer given on the first question. It may however be mentioned that if in exercising powers under Sub-section (2) the Court exceeds the limits within which its discretion is circumscribed or there is otherwise a defect of jurisdiction the decision even though judicially arrived at cannot be allowed to stand. The principle of interference in revisions and the circumstances under which applications under Section 115 against orders permitting withdrawal of suits should be entertained would depend on the facts of each case and it is obviously undesirable even if it be not impossible to define their scope or to attempt to enumerate them.
22. My answer to the second question, therefore, is as follows: If the Court purports to exercise discretion under clause (b) but the grounds are not analogous to the defects referred to in Clause (a), the decision even though judicial can be interfered with under Section 115 of the Code.
Order 1 Rule 10 10. Suit in name of wrong plaintiff.—
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant
(5) Subject to the provisions of the 1[Indian Limitation Act, 1877 (XV of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
What are the factors that qualify remedy under Order XXIII?
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim.
What are the factors that qualify remedy under Order I Rule 10 ?
a. Where a suit has been instituted in the name of the wrong person as plaintiff or ;
b. where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit
strike out the name.
Rameswara Das Bavaji And Others V. Vuppuluri Purnachandra Rao And Another. (Andhra Pradesh)
There are, however, two limitations on the free and unfettered application of the power under Order 1 Rule 10. One is, as already observed, that the institution by the wrong plaintiff should have been under a genuine mistake. The other is illustrated by Santuram Hari v. Trust of India Assurance Co., A.I.R. 1945 Bombay 11. It engrafts on the general power of courts an exception that a valuable right acquired by the other defendants should not be defeated. The expression ‘valuable right’ of course, means a right other than a claim for rejection of the suit itself on the ground of institution by a wrong plaintiff.
In the case in hand no ‘valuable’ right would be lost, and the refusal of the trial court to order transposition can hardly be sustained. The interests of the Mutt are paramount and we direct that the 2nd defendant Mutt be transposed as 2nd plaintiff in the suit.
It is needless to decide whether the first plaintiff is a de jure or a de facto trustee and whether the suit is maintainable by him, inasmuch as the first plaintiff Rameswara Das has no objection to a decree being passed in favour of the Mutt as the 2nd plaintiff represented by its Executive Officer.
Conclusion: Save and except above name of the Plaintiff cannot be deleted.