MARIYAMMA Vs. KOCHOUSEPH

JUDGEMENT

(1.) A short, but interesting question arise in this revision. Can the plaintiff who has filed an application to withdraw the suit withdraw that application.

(2.) RESPONDENT-plaintiff sought withdrawal of the suit filed by him against revision petitioner by filing an application of which notice was given to revision petitioner. Before order was pronounced on that application respondent filed another petitioner seeking withdrawal of that application. The court below allowed that application. That order is under challenge in this revision.

(3.) IN the decision in Yeshwant Govardhan v. Totaram Avasu and others -AIR 1958 Bom. 28 it was held that even if the plaintiff fails to make out his case on the merits of the application for withdrawal, if in law, the plaintiff is entitled to withdraw his application for withdrawal, the plaintiff cannot be prevented from making such an application. IN that case the application for withdrawal was filed on 17-6-1952. No order was passed on that petition till the date of the application filed for withdrawal of that application. Order on that application was passed only on 29-8-1952 by which time the second application had been filed. The finding of the court below that it was not open to the plaintiff to ask for withdrawal of his application for withdrawal of the suit was found to be erroneous and it was held that the plaintiff is entitled to withdraw his application for withdrawal of the suit.