SARASWATI BALA SAMANTA Vs. SURABALA DASSI

JUDGEMENT

(1.) This revisional application arises out of a suit for partition. The plaintiff claimed to be a co-sharer of several properties and prayed for partition allotment and exclusive possession of the property allotted. The suit was originally valued at Rs. 16,000/- for the purposes of jurisdiction and was also valued at Rs. 15/- for the purposes of court-fees. The plaint was subsequently amended by the introduction of several new items of property of which also the plaintiff claimed partition and on such amendment the suit was valued at Rs. 18,000/-. There was a protracted hearing of the suit. Evidence was adduced for twenty days and argument was heard for another four days. At the close of the argument the plaintiff' found that he could not possibly succeed in the suit and thereupon he applied for withdrawal of the suit with liberty to institute a fresh suit. This application was rejected. The plaintiff moved a further application for withdrawal of the suit. On this application the learned Subordinate Judge made the following order:

(2.) It is to be noticed that the learned Judge completely mis-appreciated the legal implications of withdrawal of a suit under Order 23 Rule 1, Civil P. C. If the plaintiff desires to withdraw his suit and does not want permission to institute a fresh suit he is at liberty to do so. The Court has no discretion in the matter and the plaintiff is entitled to withdraw the suit as a matter of right. The consequences of withdrawal are mentioned in Order 23 Rule 1, Sub-rule 3. The plaintiff withdrawing the suit without the permission of the Court is liable for such costs as the Court may award and is also precluded from instituting any fresh suit in respect of the subject matter of the suit. The withdrawal of the suit does not amount to dismissal of the suit for non-prosecution or to dismissal of the suit at all.

(3.) The order recording the withdrawal of the suit is not a decree. There was no question there-tore, of drawing the order as a decree. The order recording the withdrawal can however be formally drawn up under Rule 187 Part 1, Chapter 1 of the Civil Rules and Orders, Vol. 1, inasmuch as the order directed payment of costs by the plaintiff to the defendant. We, therefore, treat the so called decree as an order.