VIDHYDHAR DUBE Vs. HAR CHARAN

JUDGEMENT

(1.) THIS revision was referred to a larger Bench by the learn ed Single Jugde at the time of the ad mission of the revision. The plaintiffs had filed a suit claiming one-third share in the crop grown on the disputed plot in 1371 Fasli and in the alternative a certain sum of money by way of mesne profits. The plaintiffs claimed to be the heirs of one Jhammanlal, who was a co-tenant with the contesting defendants. The defendants contested the suit on the ground, inter alia, that the plaintiffs were not the heirs of Jhammanlal and that the crop had not been raised by Jhammanlal. They denied the plaintiffs' right to claim any share in the crop or to get mesne profits. The trial court dis missed the suit. The plaintiffs filed an appeal and in the appeal filed an ap plication under Order 23. Rule 1(2), Civil P. C. with a prayer for withdrawal of the suit with liberty to bring a fresh suit. In the alternative the plaintiffs also prayed for withdrawal of the suit under Order 23, Rule 1(1), Civil P. C. The lower appellate court rejected the plain tiff's application. The present revision has been filed against that order.

(2.) THE court below held that the suit or appeal did not suffer from any formal defect and that there was no other sufficient ground for allowing the appellants to institute a fresh suit for the subject-matter of the suit or part of the claim. It, therefore, came to the con clusion that provisions of Order 23, Rule 1(2) were not applicable and con sequently no permission to withdraw the suit could be given. The plaintiffs had applied for withdrawal of the suit on the ground that in mutation proceedings the names of respondents Nos. 4 and 5 had been ordered to be mutated and hence it was necessary for the plaintiffs to institute a suit under Section 229B/209 of the U. P. Z. A. and L. R. Act The court below was, therefore, justified in holding that, in the circumstances of the case, the plaintiffs were not entitled to withdraw the suit with leave to file a fresh suit for the same subject-matter.

(3.) THE learned counsel for the applicant has contended that the court below was in error in holding that the plaintiffs had no absolute right to with draw the suit at the appellate stage under Order 23, Rule 1(1), Civil P. C. His submission is that appeal is a con tinuation of the suit and hence even in appeal the plaintiffs can withdraw the suit. We do not find any merit in this contention. A plaintiff has a right to continue or withdraw a suit till a decree comes into existence. Once the court makes a final adjudication and passes a decree, certain rights become vested in the party in whose favour the decree is made. Where the suit is dismissed, cer tain rights become vested in the defen dants inasmuch as the findings given in the judgment become binding on the parties and operate as res judicata in subsequent litigation between the par ties. The right of a plaintiff to withdraw the suit at the appellate stage thus be comes subject to the rights acquired by the defendants under the decree and ceases to be an absolute right.