SHEIKH KHALIKUZZAMA Vs. SHEIKH AKHTARUZZAMA

JUDGEMENT

(1.) This first appeal has been filed against the impugned Judgment of the Civil Judge (Senior Division), Mirzapur dated 9.12.2003 in Suit No. 177 of 1995.

(2.) Learned counsel for the appellants has not gone into the merits of the findings of the court below and instead he has submitted that before the judgment was delivered on 9.12.2003, the plaintiffs appellants had moved application dated 7.10.2003 praying for withdrawal of the suit. Earlier he had filed application dated 8.9.2003 praying for withdrawal of the suit, but in that application he had prayed for liberty to file a fresh suit. However, in the second application dated 7.10.2003, he has not prayed for liberty to file a fresh suit. It is uncontroverted that the application dated 7.10.2003 was indeed filed in the court below before the impugned judgment dated 9.12.2003 was delivered.

(3.) The plaintiff in a suit is dominus litus. He has paid court fee of the suit. Hence as held by the Division Bench decision in Smt. Ratsa Sultana Begam v. Abdul Qadir, AIR 1966 All 318, he has an absolute right to withdraw his suit at any time before the judgment is delivered, vide Order XXIII, Rule 1, C.P.C. It has been observed there that since withdrawing a suit is a unilateral act on the part of the plaintiff and requires no permission or order of the Court and is not subject to any condition ; it becomes effective as soon as it is done just as a compromise does. On withdrawal certain orders may be passed by the Court but they are not for giving effect to the withdrawal, but to give effect to consequences arising out of the withdrawal. The position is clear from a bare perusal of Order XXIII, Rule 1 (1), C.P.C.