SURAJ PAL SINGH Vs. GHARAM SINGH

JUDGEMENT

(1.) THIS is a plaintiff's second appeal from a concurrent decree of dismissal of his suit for demolition of a wall. Alleging that the defendants have constructed a wall on the village path-way thereby obstructing it. the plaintiff's user of it as of right has been infringed a decree for demolition of the wall and for injunction restraining the defendants from obstructing the plaintiff from exercising his right of way over the disputed land was sought. The de fence was a denial of the plaintiff's al legations. It was pleaded that the de fendants had raised the wall on the old foundations of their Gher and no public pathway ever existed on the land in dispute. It appears that there was a hint in the plaint of some kind of pres criptive right of easement founded on a user of the land in dispute as a path way but in the trial itself what was sought to be established was that the land in dispute over which the wall had been constructed by the defendant was a village pathway. The plaintiff failed to establish by the evidence on record that the land in dispute formed part of the village pathway. A finding was also recorded that the wall had been constructed by the defendants on their old foundations. On these findings the suit of the plaintiff was dismissed. This appeal is apparently concluded by find ings of fact. During the course of his argument the learned counsel for the plaintiff-appellant made an application for withdrawal of the suit by the plain tiff. This prayer was opposed by the learned counsel for the defendant-res pondents.

(2.) THE consensus of opinion in this court is that in, an appeal a plain tiff can withdraw his suit under Order 23 rule 1, Civil Procedure Code with the permission of the court. An absolute right to a plaintiff to withdraw from the suit in appeal from the decree of dis missal of his suit has been denied to him on the ground that after passing of the decree of dismissal in the suit on the findings recorded in favour of the defen dant the latter gets some vested rights. I have never been able to appreciate what kind of vested right accrues to a defendant when the suit of the plaintiff is dismissed in toto. particularly in suits for mere injunctions. It was suggested by the learned counsel for the defendant respondents that the findings recorded in the suit on the issues and controver sies arising on the pleadings of the par ties by themselves are of great value to the defendants and may in future litigation operate as res judicata. It is difficult for me to hold that such a kind of benefit can be termed as a vested right. However, such a line of argu ment has found acceptance at the hands of some Judges of this Court and it has been held by them that the benefit that accrues to a defendant on the findings recorded, as they can be used in future as res .judicata between the parties takes away the absolute right of the plaintiff to withdraw from the suit in appeal from the decree of dismissal.

(3.) IT was urged by the learned counsel for the plaintiff appellant that the appeal being in continuation of the suit and the decree of the Court below not being final, it is always open to the plaintiff to withdraw his suit under sub-rule (1) of Rule 1 of Order 23 and costs will be payable by the plaintiff since he is not seeking permission to bring a fresh suit on the same subject matter. In view of the consenug opinion of this Court, the learned counsel for the plaintiff-appellant did not claim for the plaintiff that he has an absolute right to withdraw from the suit, but contended that a Division Bench of this Court in the case of Vidhyadhar Dube v. Har Charan. AIR 1971 All 41 has held that sub-rule (1) of Rule 1 of Order 23 of the Code does not in terms apply to appeals and. whatever may be the legal position in the trial Court, in the appellate Court the plaintiff, be he an appellant or a respondent, cannot be held to possess any absolute right to withdraw the suit, but the appellate Court may permit the plaintiff to with draw the suit when by such withdrawal no vested or substantive right of the defendant is to be adversely affected. A question then arises under what pro vision of the Code has an appellate Court power to allow the withdrawal of the suit by the plaintiff conceding that the plaintiff has no absolute right? The Division Bench observes that sub-rule (1) of Rule 1 of Order 23 of the Civil Procedure Code does not in terms apply to appeals. I do not think I should take the matter to the point of dissent from the observations of the Division Bench in AIR 1971 All 41 (Supra) as Business Co-operation v. State there is ample authority of this Court in favour of the -view that a plaintiff can always withdraw from a suit even at an appellate stage and the appellate Court has power to allow the with drawal under Order 23. Rule 1. C. P. C. In a Division Bench decision in the case of Afzal Begam v. Akhari Khanam, ILR 37 All 326 = (AIR 1915 All 123). it has been held that an appellate Court can under Order 23. Rule l. C. P. C. give a plaintiff whose suit has been dismissed by a Court of first instance permission to withdraw his suit and give him leave to institute a fresh one. In Ratan Lal v. Mohammad Hamidullah Khan, AIR 1921 All 65 the power of an appellate Court to substitute a decree for dismissal of a suit with an order. Under Order 23. Rule 1 permitting the plaintiff to withdraw from the suit with liberty to institute a fresh suit in respect of the subject-matter of the same was recognised. These two authorities were not noticed by the Division Bench in the case of AIR 1971 All 41 (supra). I would proceed, therefore, on the basis that the plaintiff- appellant can take the benefit of the provisions of sub-rule (1) of Rule 1 of Order 23 of the Civil Pro cedure Code to withdraw from the suit. Though I have in Kamta Prasad v. Gaya Prasad. 1971 All WR (HC) 667 = (ADR 1972 All 143). held that even be fore the appellate Court the plaintiff has an unqualified right to withdraw the suit without seeking permission to file a fresh suit on the same subject-matter but another learned Single Judge in the case of Kanhaiya v. Dhaneshwari 1972 All WR (HC) 590 = (AIR 1973 All 212). has taken the view that the plain tiff will have no unqualified right at the appellate stage to withdraw his suit.