Seethai Achi vs Meyyappa Chetti and Others

Sundaram Chetty, J.—This Civil Revision Petition is filed by the plaintiff in O.S. No. 56 of 1930 on the file of the Sub-Court, Devakottah,

against the order passed on her petition (I.A. No. 249 of 1933) u/s 151 and Order 23, Rule 1, Civil Procedure Code, in which she reported to the

Court her withdrawal from the suit as she had no longer any interest in the estate of her husband, by reason of her having adopted a son to him,

and asked the Court to strike the suit off the file. That petition was dismissed by the Lower Court. The correctness of that order is challenged in

this Revision Petition.

The question arising for decision in this case is of some importance and has been elaborately argued on both sides. The aforesaid suit was filed

by the plaintiff who is the widow of the late Muthu Veerappa Chettiar, against two brothers of her deceased husband, vis., defendants 1 and 3, the

2nd defendant being the son of the 1st defendant, for a decree directing the defendants to render an account of the assets belonging to her estate

which had been in their enjoyment from 28th January, 1924 and for the recovery of all the documents, securities, account books and other papers

relating to the estate, and for the execution of such documents as would be necessary to enable the plaintiff to realise the outstandings and also for

the recovery of the profits that have been derived from out of the plaintiff''s funds and the delivery to her of all jewels, silverware and other valuable

articles appertaining- to her estate in the possession of the defendants. Written statements were filed by the defendants and issues were also

settled. One of the pleas was that the plaintiff disclaimed and renounced her interest in her husband''s estate by virtue of the arrangement embodied

in an award of 1928. This forms the subject of the first issue framed in the suit. The plaintiff''s right to recover possession of her husband''s estate

from the defendants and to call on them to render accounts is the subject-matter of the third issue. During the course of the suit a compromise is

said to have been entered into by way of a family arrangement, settling all the matters in controversy between the parties to the suit and one

Meyyappa Chetti, the son of a deceased brother of the plaintiff''s husband. The said Meyyappa Chetti intervened in the suit with I.A. No. 673 of

1931 in which he sought to be added as a party to the suit, in order to enforce the rajinama alleged to have been entered into as stated above. This

rajinama, purporting to contain the terms of the settlement and to bear the marks and thumb impressions of the plaintiff and also the signatures of

defendants 1 and 3 and the said Meyyappa Chetti, was put into Court along with I.A. No. 673 of 1931 and as it contained a prayer that a decree

should be passed according to the terms thereof, it was numbered as I.A. No. 674 of 1931. Meyyappa Chetti who filed both these petitions in the

Lower Court is the present 1st respondent, and he will be referred to as such in this judgment. Both these petitions were opposed by the plaintiff

as well as defendants 1 and 3. According to the case set up by the 1st respondent, this rajinama was entered into as a family arrangement by which

all the matters in controversy between the parties to the suit and himself were settled and that it was also agreed as one of the terms of the

compromise that he should be made the 4th defendant in the suit, so that he may be bound by and participate in the family arrangement and

compromise. The plaintiff contended that she was not really a consenting party to the compromise but was made to execute it under circumstances

amounting to misrepresentation, fraud and undue influence. She further pleaded that the compromise was not a lawful one, as it contained terms

opposed to public policy, whereas defendants 1 and 3 alleged that it was not a completed arrangement and was intended to take effect if some

other matters in dispute between the parties were also settled by the mediators. According to the case of the 1st respondent, not only did the

plaintiff and defendants 1 and 3 enter into the said rajinama with their free will and consent, but they also signified their consent to his being made

the 4th defendant in the suit, by the plaintiff affixing her mark and thumb impression and defendants 1 and 3 affixing their signatures to the petition

filed by him for being addled as a party (vide I.A. No. 673 of 1931). The Subordinate judge after hearing the arguments on both sides passed an

order that I.A. No. 673 of 1931 should not be rejected in limine, but some evidence should be gone into in order to pass an appropriate order

thereon. The plaintiff filed a Revision Petition in the High Court against that order, but it was dismissed on the ground that such a petition did not lie

because no final order was passed by the Lower Court. In respect of another order passed by the Lower Court in the aforesaid petitions by way

of a direction as to who should lead the evidence, the 1st defendant filed a Revision Petition in the High Court which came up before Krishnan

Pandalai, J., who stated that the petition to implead Meyyappa Chettiar must be first disposed of on its own merits, in which one of the matters to

be considered would be whether the parties had freely and genuinely agreed to that course. The further direction given by the learned Judge seems

to be, that the question of the suit having been adjusted wholly or in part by any lawful agreement or compromise should be taken up for decision

when Meyyappa Chettiar is added as a party-defendant. In accordance with these directions, the Lower Court was proceeding with the enquiry in

respect of I.A. No. 673 of 1931 and some oral evidence was recorded and documents also were filed. When matters stood thus the present

plaintiff filed I.A. No. 249 of 1933 on 13th February, 1933, announcing her withdrawal from the suit for the reasons mentioned therein, and stating

that the suit may be struck off the file. This petition was strenuously opposed by the present 1st respondent whose grievance was, that the interests

derived by him in the subject-matter of the suit by reason of the aforesaid compromise would be prejudicially affected, if by reason of the plaintiff''s

withdrawal at such a stage the Court should simply dismiss the suit. According to him, by reason of the plaintiff''s own agreement along with

defendants 1 and 3 a third share in the estate which the plaintiff surrendered in favour of defendants 1 and 3 (the immediate reversioners) is

conferred on him. It is alleged that he is one who has acquired valuable rights by virtue of assignment or creation of an interest under the rajinama

agreement during the pendency of the suit, and that the subsequent withdrawal of the suit by the plaintiff is only a device resorted to in collusion

with defendants 1 to 3, in order to burke an enquiry in respect of the rajinama put into Court and thus prejudice his interests. The learned

Subordinate Judge did not think fit to dismiss the suit itself consequent on the withdrawal application, for the reasons stated by him in his order. He

held that the proper stage for considering whether the suit should be dismissed or not was after the disposal of I. As. Nos. 673 and 674 of 1931

which are pending enquiry. In this view, he dismissed the plaintiff''s application, suggesting that she may renew the same if necessary after the

disposal of those petitions.

The main contention pressed on behalf of the plaintiff (petitioner) is, what is set forth in ground No. 2 of this Revision Petition, viz., that the

Lower Court ought to have dismissed the suit when the plaintiff withdrew from it unconditionally under Order 23, Rule 1, CPC and when the

defendants on the record did not object to the withdrawal. The question is whether this contention should prevail, having regard to the special

circumstances of this case. Sub-rule (1) of Order 23, Rule 1 gives the plaintiff the option of withdrawing from the suit or abandoning part of his

claim at any time after its institution. No permission of the Court is necessary for such a withdrawal. Sub-rule (3) says that the plaintiff, who does

so, 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. The aforesaid rule does not specify what the Court has to do to terminate the suit after such withdrawal. No doubt, it has to

provide for the costs of the defendants by passing an appropriate order. Ordinarily, the termination of a suit is brought about either by a decree or

by a dismissal. Would the mere withdrawal of the plaintiff from the suit amount to a termination thereof, without any order of the Court ? Does the

Court become functus officio the moment the plaintiff announces the fact of withdrawal? Is the Court deprived of all jurisdiction over the suit for

any purpose except for passing an order as to costs in the event of such withdrawal by the plaintiff? These questions have to be answered in the

affirmative, if the contention put forward on behalf of the plaintiff and defendants 1 and 3 should prevail. Reliance has been placed on the decision

in Ram Churn Bysack v. Ripsimah Harmi (1868) 10 W.R. 373 No doubt, the view taken therein is that the Court is immediately deprived of

authority further to entertain the claim and should then confine itself solely to the question of costs. It seems to me that when a plaintiff so

withdraws, it is not open to the defendant to resist the withdrawal and court an enquiry into the merits of the claim, if nothing else has happened

which may be a bar to the dismissal of the suit. The effect of the decision in Ram Churn Bysack v. Ripsimah Harmi (1868) 10 W.R. 373 should

not be carried too far to lead to the position that the Court is deprived of all jurisdiction over the case, so that it could not even pass an appropriate

order indicating the disposal of the suit. This decision was considered by Curgenven, J. in a recent case reported in V.K. Kunju Kombi Achan and

Another Vs. Ammu alias Parvathi Neithiar, . The learned Judge observes that such a view is only compatible with the position that the Court has to

pass no order regarding the fact of withdrawal and the disposal of the suit by that means and is of opinion that until the Court passes such an order,

it is not deprived of jurisdiction over the suit for all purposes. There is nothing in Mahant Biharidasji v. Parshotamdas ILR (1908) Bom. 345 to

support the extreme contention put forward on behalf of the plaintiff. All that is laid down in that decision is, that the plaintiff can withdraw from the

suit on his own motion and no order of the Court is necessary. Before the final order of the Court is passed after"" such withdrawal, the suit cannot

in my opinion be deemed to have been terminated. V.K. Kunju Kombi Achan and Another Vs. Ammu alias Parvathi Neithiar, and Rajkumari Debi

v. Nrityakali Debi (1910) 12 C.L.J. 434 are in support of this view. In the latter case, the plaintiff who first unconditionally withdrew her suit was

allowed to recall her petition for withdrawal, as no final order terminating the suit had been passed.

Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff, it

will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have

been recognised to this general rule. In suits for partition, if a preliminary decree is passed declaring and defining the shares of the several parties,

the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the

defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits

for accounts where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the

suit by the plaintiff cannot end in the mere dismissal of the suit. Similarly in suits for specific performance and administration suits, the withdrawal by

the plaintiff should not necessarily lead to the dismissal of the suit, because some appropriate reliefs have to be given even in favour of the

defendants. In a representative suit the Court need not dismiss the suit in, spite of the withdrawal by the plaintiff, but it may add another person as a

party in substitution of the plaintiff or transpose a defendant as plaintiff and direct the continuance of the suit. The case reported in V.K. Kunju

Kombi Achan and Another Vs. Ammu alias Parvathi Neithiar, is one of such cases. Such substitution was made in appeal. In a suit where a

compromise was set up by which certain rights were alleged to have been acquired by the defendants with the consent of the plaintiff and the

defendants produced the agreement in Court and applied for a decree in terms of the compromise, the Court declined to dismiss the suit by reason

of the subsequent withdrawal of the suit by the plaintiff (vide Tukaram Mahadu v. Ramchandra Mahadu I.L.R.(1925)49 Bom. 672). The terms of

Order 23, Rule 3, Civil Procedure Code, are equally imperative. The Court if satisfied that the suit has been compromised, is bound to pass a

decree in accordance with the terms thereof. That being so, it has been held that the special procedure therein laid down is not affected by the

general provisions of Order 23, Rule 1. The principle to be kept in view in a matter like this has been stated by Jenkins, C.J., in Satyabhamabai v.

Ganesh Balkrishna ILR (1904) Bom. 13 :

It appears to us clear that when in a partition suit a defendant has by concession of the plaintiff acquired rights which otherwise could not have

existed, it is not open to the plaintiff who has made that concession, afterwards to annul its effect by withdrawing the suit in the appellate Court.

Another instance of the non-termination of the suit by its dismissal consequent on the withdrawal by the plaintiff is supplied in the case reported

in Sirajuddin Sahib v. Saturi Sahib (1919) 12 L.W. 25. In that case, one who filed the suit as a trustee, subsequently put in a petition to withdraw

the suit. In the circumstances of that case, the Court transposed a defendant as a plaintiff and allowed the suit to be continued. It is thus clear that

the rule contended for by the plaintiff is not an absolute one and many an innovation has been made on that rule.

The question therefore for consideration is, whether in the special circumstances of this case there is justification for not immediately dismissing

the suit in consequence of the plaintiff''s withdrawal, a course which the learned Subordinate Judge has thought fit to adopt by reason of the

pendency of the enquiry in respect of I. As. Nos. 673 and 674 of 1931. It is strenuously contended for the petitioner, that as the 1st respondent is

not actually a party to the suit, he has no right to enforce the rajinama under Order 23, Rule 3, Civil Procedure Code, by filing I.A. No. 674 of

1931, and therefore the pendency of that application should not be deemed to be a bar to the dismissal of the suit by the Court. It is however

conceded that if such an application was made by the defendants themselves who are parties on record, the principle of the decision in Tukaram

Mahadu v. Ramchandra Mahadu ILR (1925) Bom. 672 will apply. Rule 3 does not expressly say by whom the application itself should be put in.

Presumably, it is a party to the suit that has to apply to the Court tar record an alleged compromise as an adjustment of the suit wholly or in part. A

stranger to the suit, though he is a party to the compromise, may not be allowed to apply for its enforcement in that suit without his being impleaded

in it as a party. That is why in the present case the 1st respondent has put in an application to be added as a party along with the rajinama which he

put in for a decree to be passed. If the Court finds that the suit has been adjusted wholly or in part by any lawful agreement or compromise, it will

give effect to it by passing a decree so far as it relates to the suit. On the question whether the 1st respondent is entitled to be made a party in this

suit for the purpose of enforcing the said rajinama, elaborate arguments have been addressed on both sides. As that petition is now pending

enquiry before the Lower Court, I do not think fit to say anything which will fetter its discretion. However, something has to be said on that point,

because one of the reasons urged on behalf of the plaintiff for the dismissal of the suit consequent on the withdrawal by her is, that the 1st

respondent has no locus standi to enforce the rajinama under Order 23, Rule 3, Civil Procedure Code. It -is argued by Mr. S. Srinivasa Aiyangar,

the learned Counsel for the 1st respondent, that though I.A. No. 673 of 1931 was put in under Order 1, Rule 10, Civil Procedure Code, which

gives a very wide discretion to the Court, the right to be made a party comes even under a specific provision of the Code, vis., Order 22, Rule 10.

He further contends that by virtue of the declaration of a substantive right contained in Section 146, Civil Procedure Code, the 1st respondent must

be taken to be a person claiming under defendants 1 and 3 by reason of his being an assignee of one-third share of the estate which became vested

in defendants 1 and 3 on account of the surrender by the plaintiff as per the rajinama.

If the 1st respondent is a person claiming under defendants 1 and 3 within the meaning of Section 146, then the application to enforce the

rajinama which defendants 1 and 3 are entitled to make under Order 23, Rule 3, Civil Procedure Code, may also be made by the 1st respondent.

If the 1st respondent is an assignee of an interest in the subject-matter of the suit from defendants 1 and 3 under this compromise agreement, the

suit may, by leave of the Court, be continued by or against him under Order 22, Rule 10, Civil Procedure Code. The acquisition of such a right

may weigh with the Court in exercising its discretion for adding him as a party on his application under Order 1, Rule 10. In this connection the

observation of Krishnan Pandalai, J., in an exhaustive judgment reported in Annamalai Chettiar v. Koothappudayar (1932) 38 L.W. 280 . appears

to be very pertinent. In that case one who got a mortgage from the plaintiff sought to be added as a party in order to enforce a compromise alleged

to have been entered into in that case. The learned Judge says thus:

Had this compromise been completed, he might have asked the Court to carry it out by adding him and giving a decree according to it.

But in that case the compromise was found to have been broken down and therefore it could not be given effect to. The opinion of the learned

Judge is in favour of adding the assignee as a party for the purpose of enforcing the compromise and passing a decree thereon. What the 1st

respondent in the present case asks for is the same. If the Court has jurisdiction to enquire into the petitions filed by the 1st respondent, how does

it lose that jurisdiction by reason of the subsequent withdrawal of the suit by the plaintiff ? If on enquiry the Court finds that these petitions have to

be dismissed, the only course left to the Court is to dismiss the suit as a consequence of the withdrawal by the plaintiff; otherwise, the Court should

deal with the case under Order 23, Rule 3 and see whether a decree can be passed in accordance with the rajinama and to what extent.

Coming now to the question whether the mere circumstance of a person not being actually a party on record is a bar to his filing an application

under Order 23, Rule 3, I can take a concrete illustration. Suppose a plaintiff has filed a suit against two persons as defendants, and a rajinama has

been entered into as between them. If one of the defendants subsequently dies and his legal representative wants to apply to the Court to enforce

that rajinama, what has he to do? He will apply to be made a party in the place of the deceased defendant and put in the rajinama for its

enforcement. Suppose at that stage the plaintiff files a petition stating that he withdraws the suit, can the Court merely dismiss the suit without

enquiring into those petitions put in by the alleged legal representative of the deceased defendant? That legal representative will say that he has

acquired the interest which was secured to the deceased defendant under the rajinama, and a decree should accordingly be passed without

dismissing the suit. There is in such a case no question of the dismissal of the suit being the necessary result of the withdrawal by the plaintiff. Is the

1st respondent in the present case in a worse position ? All that can be said is, that where a legal representative applies to be made a party, the

Court has no option but to add him, on finding him to be the proper legal representative, whereas in the case of an assignee applying under Order

22, Rule 10, it is in the discretion of the Court to give him leave or not. Even if he applies under Order 1, Rule 10, the discretion will be exercised

by the Court in a judicial manner and not arbitrarily. Some cases have been cited by the learned Counsel for the petitioner to show that in the

exercise of the discretion the Court refused to allow a third party to intervene in the suit in order to dispute or oppose a compromise entered into

between the parties actually on record: Raja Rajeswara Muthuramalinga Sethupathi v. Secretary of State (1925) 50 M.L.J. 59 and Laraiti Vs. Ch.

Shiam Sunder Lal and Another , In the latter case, a purchaser pendente lite sought to be impleaded as a party in order to oppose a compromise.

In the former case, the Secretary of State wanted to be made a party in order to impeach the validity of a compromise entered into between the

plaintiff and the defendant. A contrary view was taken in Lakshan Chunder Dey v. Nikunjamoni Dasst 27 C.W.N. 755, where even after the

parties actually on record had reported the terms of settlement and the Court ordered that a decree should be drawn up accordingly, an assignee

was added under Order 22, Rule 10, Civil Procedure Code, to enable him to impeach the settlement. This was done in order to avoid multiplicity

of suits, no decree having been actually drawn up in pursuance of the order of the Court when the assignee made the application. The present case

is a converse one. In respect of the alleged rajinama, a third party, vis., the 1st respondent, claiming to have acquired an interest therein as

assignee, wants to be added as a party for the purpose of enforcing this compromise, while the plaintiff and the defendants on record do not wish

to have it enforced. But if there is a question common to the parties on record and a stranger, as regards the subject-matter of the suit or any

portion thereof, it should be tried once for all by allowing the stranger to be made a party (vide Vydianadayyan v. Sitaramayyan ILR (1881) Mad.

No other enquiry need be made in the present suit, besides the one connected with the rajinama petition under Order 23, Rule 3. Moreover,

Order 22, Rule 10, Civil Procedure Code, is not confined only to cases of undisputed assignment, creation or devolution of interest. It is open to

the Court to make an enquiry and pass the necessary order (vide Surendra Narain Deo Vs. Nityendra Narain and Others, ). The Lower Court has

thought fit to make that enquiry in the present case, and the exercise of that discretion by it cannot be easily interfered with in revision. It is urged,

on behalf of the plaintiff, that by pursuing this enquiry unnecessary complications will arise. It is not within the province of this enquiry to determine

what effect this rajinama, even if true, lawful and complete, will have on the alleged adopted son of the plaintiff. He is not a party to the suit and that

question is utterly foreign to the present enquiry.

On a due consideration of the circumstances in this case, I am of opinion that the suit cannot be dismissed at this stage by reason of the

plaintiff''s withdrawal from it. Her application for the unconditional dismissal of the suit by reason of the withdrawal cannot now be granted. It

depends upon the result of the enquiry which the Lower Court has undertaken in respect of I. As. Nos. 673 and 674 of 1931. The Lower Court

would have done well, if it kept the plaintiff''s petition (I.A. No. 249 of 1933) pending till the disposal of the other two petitions. I would set aside

the order of the Lower Court dismissing I.A. No. 249 of 1933 and direct its restoration to file to be disposed of in accordance with the result of

the enquiry in I. As. Nos. 673 and 674 of 1931. As the petitioner has failed in her main contention, she will pay the costs of the 1st respondent in

this Civil Revision Petition and bear her own.

Pandrang Row, J.

This petition is one to revise the order of the Subordinate Judge of Devakottah, dated 23rd February, 1933, dismissing the application of the

petitioner who was the plaintiff in O.S. No. 56 of 1930 under Order 23, Rule 1, Civil Procedure Code, for striking off the suit from the file of the

Court. The Subordinate Judge dismissed the application with permission to renew it later on after the disposal of 1. As. Nos. 673 and 674 of 1931

which had been filed by the 1st respondent on 22nd June, 1931, to be impleaded as a party to the suit and to enforce a compromise of the suit

entered into between himself, the plaintiff in the suit, and defendants 1 and 3. It was not disputed during the argument that the order of the

Subordinate Judge dismissing the plaintiff''s application under Order 23, Rule 1 cannot be sustained, and that even assuming that it was necessary

to dispose of I. As. Nos. 673 and 674 of 1931 on their merits the proper course would have been not to dismiss the plaintiff''s application but to

postpone passing orders thereon till the disposal of the interlocutory applications filed by the 1st respondent. The questions that have been argued

at length before us were (1) that the Lower Court had no jurisdiction to deal with I. As. Nos. 673 and 674 of 1931 after the plaintiff filed her

application for withdrawal of the suit under Order 23, Rule 1, as that application terminated the suit, and (2) that even assuming the compromise to

be lawful a stranger to the record like the 1st respondent cannot maintain an application to be made a party or to enforce the compromise. The first

question is one of jurisdiction* and the plaintiff-petitioner''s contention involves the proposition that the Court becomes functus officio except for

the purpose of making an order regarding costs once the plaintiff withdraws the suit under Order 23, Rule 1, and loses its power to deal with any

pending applications in the suit. Though this proposition finds support in the decision in Ram Churn Bysack v. Ripsimah Harmi (1868) 10 W.R.

373, there can be no doubt that the absolute right of the plaintiff to withdraw the suit recognised therein has since been declared to be subject to

several limitations or exceptions. It cannot be said in the light of the subsequent decisions dealing with this point that the plaintiff''s right to withdraw

the suit is unqualified or absolute. On the other hand, it is clear that this right is subject to all just exceptions. It does not follow that, because the

plaintiff is dominus litis and has the right of withdrawing the suit, the Court becomes functus officio and is debarred from exercising any further

jurisdiction in the suit except in the matter of costs. It is in my opinion open to the Court to consider and decide any objection that may be made to

the withdrawal of the suit before passing orders on the application to withdraw. The two interlocutory applications referred to above made by the

1st respondent were being enquired into when the plaintiff applied to withdraw the suit, and the delay in the disposal of these applications was due,

in part, at least, to the opposition offered by the plaintiff and defendants 1 and 3 who carried the matter to the High Court not less than three times

in revision. It is not contended that the Lower Court had no jurisdiction to entertain and decide these applications on their merits before the plaintiff

applied to withdraw her suit. Can it be said that the mere making of an application by the plaintiff to withdraw her suit ipso facto deprived the

Court of the jurisdiction which it had till then? I think the right answer to this question is in the negative. The 1st respondent had the right to get an

adjudication on his applications when the plaintiff applied to withdraw the suit. This existing right cannot be frustrated or destroyed by the plaintiff''s

application to withdraw her suit for, it is clear from the authorities that a plaintiff''s right to withdraw the suit is not absolute but is controlled by

other existing rights. The delay of the Court in disposing of the 1st respondent''s applications cannot deprive him of the right which he had to obtain

an adjudication in the matter. I am therefore of opinion that the Lower Court had jurisdiction to deal with the interlocutory applications made by the

1st respondent on their merits in spite of the plaintiff''s application to withdraw her suit. In dealing with the second question it must be assumed that

the compromise sought to be enforced is a lawful one; the question whether it is lawful must be left to the Lower Court itself for decision after due

inquiry. The 1st respondent''s application to be made a party to the suit purports to be one under Order 1, Rule 10. It has, however, been

contended before us that apart from Order 1, Rule 10, the 1st respondent had aright to apply to be made a party under Order 22, Rule 10 and

Section 146, Civil Procedure Code, was also relied upon in this connection as he claitns to be a person on whom the interest of the defendants 1

and 3 under the compromise had devolved. It was conceded before us that not only any party to the suit but even the legal representative of any

party to the suit would be entitled, to apply to be made a party for the purpose of enforcing a compromise even after the plaintiff''s withdrawal of

the suit. It was however contended that a transferee has not the same right because while in the case of a legal representative his right to be made a

party is absolute and the Court has no discretion in the matter, in the case of a transferee he has only a right to apply and the Court has discvetien

either to allow or to dismiss his application. This, however, is a distinction without a difference, as the right to apply cannot be said to be lost

merely because it is discretionary in the Court to allow the application or to dismiss it. A right to apply implies a right to have an adjudication on the

application, for otherwise the right would be purely nugatory. It must also be noticed in this connection that the 1st respondent applied to be made

a party for the purpose of enforcing the compromise. The right of a party to enforce a compromise in spite of the withdrawal of the suit is not

disputed, and there is no reason why this right should be denied merely because the application to be made a party happened to be undisposed of

when the suit was withdrawn. Actus curiae neminem gravabit and ""actus"" include delay. The application to be made a party was merely preliminary

to the application to enforce the compromise, and unless the former is decided on its merits it-would not be possible to dispose of the other

application which involves substantial rights. I am therefore of opinion that the withdrawal of the suit by the plaintiff did not deprive the 1st

respondent of his right to obtain an adjudication on his applications to be made a party and to enforce the compromise. I therefore concur in the

order proposed by my learned brother.