Smt. Raj Rani and Others vs Ram Lal

N.K. Sodhi, J.—Plaintiff-Respondent is the son of late Diwan Chand. He instituted a suit for possession by partition of shop marked ABCDEF shown in red colour in the site plan attached to the plaint. Defendants 1 to 4 are heirs of Sat Pal deceased who was also one of the son of late Diwan Chand. Defendant No. 5 is also the son of Diwan Chand. The suit was contested by the defendants on various grounds and one of their pleas was that Diwan Chand deceased had executed a will dated 13.1.1983 in favour of Raj Rani widow of Sat Pal and Kharaiti Lal. Pleading of the parties gave rise to the following issues:

(1) Whether the plaintiff is entitled to separate possession of the suit property by metes and bounds as alleged? OPP.

(2) Whether the plaintiff has no locus standi to File this suit? OPD.

(3) Whether the suit is bad for non joinder of necessary parties? OPD. (1-A) Whether Dewan Chand deceased executed a valid will dated 13.1.1983 in favour of Raj Rani and Kharaiti Lal bequeathing the shop and house as alleged? OPD.

On a consideration of the oral and documentary evidence led by the parties, the trial Court decided issues No. 1 and 1 -A in favour of the defendants and against the plaintiff and it was held that Diwan Chand deceased did execute a valid will on 13.1.1983 in favour of Raj Rani and Kharaiti Lal and that the plaintiff was not entitled to possession of the suit property which stood bequeathed to the defendants under the will. Feeling aggrieved by the judgment and decree of the trial court the plaintiff preferred an appeal before the District Judge, Gurdaspur. When this appeal came up for hearing on December 20, 1996 the plaintiff-respondent made a statement and withdrew the suit. The lower appellate court then dismissed the suit as withdrawn and so also the appeal. It is against this order that the present revision petition has been filed.

Ms. Mann, counsel for the petitioners strenuously contended that the suit having been dismissed by the trial Court after contest by the parties could not be allowed to be withdrawn at the appellate stage thereby depriving the defendants of the rights which came to vest in them as a result of the findings recorded by the trial court. Shri Rajive Bhalla, Advocate for the plaintiff-respondent, on the other hand, urged that under order 23 Rule 1 of the CPC (for short the Code) the plaintiff could withdraw his suit at any time even at the stage of appeal. It is contended that an appeal being only a continuation of the suit and the decree of the trial Court not being final, no right comes to vest in the defendant with the dismissal of the suit and, therefore, the plaintiff can always withdraw his suit under Sub-Rule (1) of Rule 1 of Order 23 of the Code.

Having given my thoughtful consideration to the rival contentions of the parties, I find merit in the submission of Ms. Mann. The words ''at any time after the institution of a suit'' occurring in Order 23 Rule 1 of the Code apply to a suit in the trial Court and not thereafter. Once the suit is decided by the trial Court after contest by the parties and findings recorded on issues arising between them, the plaintiff cannot, as a matter of course, withdraw his suit at the stage of appeal. With the decision by the trial Court rights come to vest in a party in whose favour those issues have been decided and these rights cannot be set at naught by the plaintiff by withdrawing the suit at the appellate stage. If he is allowed to do so, the defendants would be deprived of the benefit of the trial Court''s judgment and decree in their favour. The findings recorded in the suit on the issues and controversies arising on the pleadings of the parties could be of great value to the defendants and in any future litigation between them or by their successors in interest those findings would operate as res judicata. This is the right which comes to vest in the defendants with the dismissal of the suit and cannot be allowed to be defeated by allowing the plaintiff to withdraw the suit at the stage of appeal. He can withdraw his appeal but not the suit. The view that I have taken finds support from decisions of this Court in Jubedan Begum and Others Vs. Sekhawat Ali Khan, and Gurnek Singh and Anr. v. Gurbachan Singh and Ors. (1986) 89 P.L.R. 309. The same view has been taken by the Allahabad High Court in Vidhydhar Dube and Others Vs. Har Charan and Others, and Kanhaiya and Others Vs. Mst. Dhaneshwari and Another, . However, a dissenting view has been expressed by a learned Single Judge of the Allahabad High Court in Suraj Pal Singh Vs. Sri Gharam Singh and Others, . This judgment does support the submissions of the respondent. The plaintiff therein sought to withdraw the suit at the stage of second appeal only with the permission of the Court. The learned Judge did express his view that the plaintiff is at liberty to withdraw the suit even at the appellate stage and held that no right vests in a defendant with the dismissal of a suit by the Court below. With respect to the learned Judge, I am unable to subscribe to his view and express my dissent therefrom. As observed by the learned Judge in Suraj Pal Singh''s case (supra), the consensus of opinion that has evolved even within the Allahabad High Court is that the plaintiff cannot be allowed to withdraw a suit at the appellate stage and can only do so with the permission of the Court.

In the result, the impugned order dated December 20, 1996 allowing the plaintiff-respondent to withdraw his suit after the same had been dismissed by the trial Court, cannot be sustained. Consequently, the revision petition is allowed and the order permitting the plaintiff-respondent to withdraw his suit set aside. The case is remanded to the District Judge, Gurdaspur with a direction to hear and dispose of the appeal on merits if the plaintiff wants to pursue the same. Parties through their counsel have been directed to appear before the District Judge, Gurdaspur on 19.7.1999 for further proceedings.