JAGTAR SINGH Vs. PARGAT SINGH

JUDGEMENT

(1.) This special leave petition arises from the order of the High court of Punjab and Haryana made on 19-7-1996 in Civil Revision No. 4233 of 1995.

(2.) Respondent 1, elder brother of the petitioner filed the suit for declaration against the petitioner and three brothers that the decree dated 4/5/1990 was null and void which was decreed by the Subordinate Judge, Hoshiarpur on 29/9/19933. The petitioner has filed an appeal in the court of the Additional District Judge, Hoshiarpur. The counsel made a statement on 15/9/1995 that the petitioner did not intend to proceed with the appeal. On the basis thereof, the appeal was dismissed as withdrawn. The petitioner challenged the order of the appellate court in the revision. The High court confirmed the same in the impugned order. Thus, this special leave petition.

(3.) The learned counsel for the petitioner has contended that the petitioner had not authorised the counsel to withdraw the appeal. The court after admitting the appeal has no power to dismiss the same as withdrawn except to decide the matter on merits considering the legality of the reasoning of the trial court and the conclusions either agreeing or disagreeing with it. We find no force in the contention. Order III Rule 4 Civil Procedure Code empowers the counsel to continue on record until the proceedings in the suit are duly terminated. The counsel, therefore, has power to make a statement on instructions from the party to withdraw the appeal. The question then is whether the court is required to pass a reasoned order on merits against the decree appealed from the decision of the court of the Subordinate Judge Order 23 Rules 1 (1 and (4 give power to the party to abandon the claim filed in the suit wholly or in part. By operation of Section 107 (2 of the Civil Procedure Code, it equally applies to the appeal and the appellate court has co- extensive power to permit the appellant to give up his appeal against the respondent either as a whole or part of the relief. As a consequence, though the appeal was admitted under Order 41 Rule 9. necessarily the court has the power to dismiss the appeal as withdrawn without going into the merits of the matter and deciding it under Rule 11 thereof.