Limitation and joint withdrawal rules: a common possession suit may continue despite one co-plaintiff's repudiation

Limitation was to be assessed on the date the plaint was filed, and a joint suit by transferor and transferee plaintiffs for possession was not time-barred because the transferor could rely on the personal disability exemption under Section 6 of the Limitation Act; the transferee alone could not claim that benefit, but the combined claim remained maintainable to support the common relief. A co-plaintiff who attained majority could repudiate his own claim, yet could not unilaterally withdraw from a joint suit without the consent of the other plaintiff under Order XXIII Rule 1(4) CPC, so the common possession claim could continue.

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Issues: (i) Whether the suit, as originally framed by the transferor and transferee plaintiffs, was barred by limitation. (ii) Whether a co-plaintiff who had attained majority could withdraw from the suit so as to prevent the remaining plaintiff from continuing the action for the common relief of possession.

Issue (i): Whether the suit, as originally framed by the transferor and transferee plaintiffs, was barred by limitation.

Analysis: Limitation had to be tested on the date of presentation of the plaint. The transferor-plaintiffs were within time because one was under disability and the suit by transferor and transferee together could take the benefit of the personal exemption under Section 6 of the Limitation Act. The transferee alone could not claim that benefit, but a joint suit by the transferor and transferee for possession was maintainable, since the transferor joined to support the common claim and to avoid multiplicity of proceedings.

Conclusion: The suit, as framed, was not barred by limitation.

Issue (ii): Whether a co-plaintiff who had attained majority could withdraw from the suit so as to prevent the remaining plaintiff from continuing the action for the common relief of possession.

Analysis: A minor co-plaintiff on attaining majority could repudiate the suit, but withdrawal by one of several plaintiffs could not be permitted without the consent of the others under Order XXIII, Rule 1(4) of the Code of Civil Procedure, 1908. The withdrawal related only to the withdrawing plaintiff's personal claim and did not lawfully extinguish the joint claim for possession shared with the remaining plaintiff. The order permitting complete withdrawal was therefore incorrect, and the withdrawing plaintiff had to be treated as still on record for the common relief.

Conclusion: The withdrawal could not defeat the remaining plaintiff's right to continue the suit for possession.

Final Conclusion: The appeal succeeded, the dismissal was set aside, and the matter was sent back for trial of the remaining issues other than the one already concluded on jurisdiction.

Ratio Decidendi: Limitation is determined as on the date of the plaint, and one of several plaintiffs cannot unilaterally withdraw from a joint suit so as to destroy a common claim without the consent of the others.

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