KANHAIYA Vs. DHANESHWARI

JUDGEMENT

(1.) THIS is an application by the plaintiff appellants under Order XX in, Rule 1, Civil Procedure Code praying that the plaintiffs appellants be permitted to withdraw from the aforesaid suit with liberty to institute a fresh suit in respect of the subject-matter. At the time of arguments, however, the learned counsel pressed his prayer only under sub-rule (1).

(2.) The suit was filed for an injunc tion restraining the defendants from interfer ing with the plaintiff's right in respect of the plots hi dispute alleging that the plaintiffs were Bhumidhars. A relief for damages for misappropriation of the fruits of the grove was also claimed. The suit was dis missed by the trial court and the decree was confirmed by the learned Additional Civil Judge. It may also be noted that during the pendency of the second appeal hi this Court Mewa Lal, one of the plaintiff appellants, died and his heirs were not brought on re cord. Baul, respondent No. 2 also died during the pendency of the second appeal and his heirs were also not brought on re cord. This Court by its order dated 15-11-1971 ordered that the appeal of Mewa Lal abated as against the respondents and the appeal as a whole abated against Baul res pondent No. 2.

(3.) The question for considertion is whether the appellants have a right to with draw the suit at this stage. Sub-rule (1) of Order XXIII, Rule 1 runs as follows:-