r b Vs Prabha Shankar and ors.

J.V. Gupta, J.

This petition is directed against the order of the trial Court dated 2581989 whereby the plea of the plaintiff to withdraw the suit without permission to file a fresh suit was declined. The said plea was contested on behalf of defendant on the ground that the partition suit was instituted subsequent to the present suit and that the question of title of the suit property of the instant suit be decided in the present suit. The trial Court found that the present suit being a previously instituted suit cannot be dismissed on the ground that a partition suit qua the larger property which also includes suit property was filed four years later. Voluminous evidence has been recorded in the present suit & the same is at final stage and, therefore, it was not deemed expedient or proper to grant prayer of the plaintiff for dismissal of the suit as withdrawn.

Learned counsel for the petitioner submitted that the plaintiff wanted to withdraw his suit as contemplated under Order 23 Rule 1(4) and no permission of the Court as such was required. Thus, argued the learned counsel, the view taken by the trial Court in this behalf was wholly wrong and illegal. The Court had thus acted illegally and with material irregularity in the exercise of its jurisdiction.

On the other hand, learned counsel for the defendantrespondent submitted that the plaintiff could not be allowed to withdraw the suit at this stage and in support of his contention, he referred to Sulakhan Singh v. Daljit Singh and others, 1988(2) PLR 200 : 1988(2) R.R.R. 410.

After hearing the learned counsel for the parties, I find merit in the contention raised on behalf of the petitioner. Under Order 23 Rule I no permission is required from the Court for abandoning the suit as a whole or a part of the claim. The permission is required only if the plaintiff wants to institute a fresh suit on the same cause of action. That being so the plaintiff was entitled to abandon the suit as contemplated under Order 23 Rule 1. Subclause (4) thereof provides that where the plaintiff abandons any suit or part thereof, he shall be liable for such costs as the Court may award and shall be precluded from instituting any suit in respect of such subject matter or such part of the claim. The judgment relied upon by the learned counsel for the respondent has no applicability to the facts of the present case. In that case, the suit was being withdrawn in appeal and not in the trial Court. It was, therefore, held therein that the words ''at any time'' in Rule I of Order 23 would apply to the suit pending in the trial Court, Once the decree is passed by the trial Court then certain rights are vested in the party in whose favour the suit is decided. Thus, the plaintiff is not entitled to withdraw the case as a matter of course, at any time after the decree is passed by the trial Court.

In the circumstances, the petition succeeds the impugned order is set aside and the trial court is directed to pass fresh order keeping in view all the observations made above.

Since further proceedings were stayed at the time of motion hearing, the parties are directed to appear in the trial Court on 27101989.