JUBEDAN BEGUM Vs. SEKHAWAT ALI KHAN

JUDGEMENT

(1.) This appeal is directed against the order of the Additional District Judge, Sangrur, dated 25-10-1982, whereby the plaintiff was allowed to withdraw the suit, alter setting aside the judgment and decree of the trial Court, dismissing his suit.

(2.) The plaintiff-respondent who is a tenant under the defendants filed the suit for declaration and permanent injunction, alleging that he had taken the house in dispute on rent seven years back from the defendants and had been paying rent regularly and the rent up to November, 1979 had been paid by him, but the landlords never issued any receipt in this respect. Since the defendants were threatening to dispossess him forcibly, on the ground of non-payment of rent, he filed the suit for declaration to the effect that he had already paid rent up to 30-11-1979 and thus prayed for a decree for permanent injunction, restraining the defendants from dispossessing him forcibly from the suit properly. However, the suit was contested on behalf of the defendants. Ultimately, the trial Court found that the rent at the rate of Rs. 80/- per mensem up to 31-8-1974 firmly had been paid by the plaintiff, and thereafter the rent had not been paid, as alleged in the plaint. Consequently, plaintiff's suit was dismissed. In appeal filed on behalf of the plaintiff, an application under O. 23, Rule 1 of the Code of Civil Procedure was filed wherein it was prayed that he be allowed to withdraw the suit. That application was resisted on behalf of the defendants, on the ground that there was no sufficient reason for withdrawing the suit, and the application was filed by the plaintiff simply to avoid decision which has been given in favour of the defendants by the learned trial Court. However, the learned lower Appellate Court, found that as the defendants could not he said to have acquired any right under the decree and the withdrawal of the suit would not adversely affect the substantive rights of the defendants the plaintiff was entitled to withdraw the same. Consequently, the application was allowed. The judgment and decree of the trial Court were set aside and the plaintiff's suit was dismissed as withdrawn. Dissatisfied with the same, the defendants have filed the second appeal in this Court.

(3.) The learned counsel for the appellants contended that the plaintiff could not be allowed to withdraw the suit in appea1 because a categorical finding has been given by the trial Court that he had failed to prove that he had paid rent up to 30-11-1879. According the learned counsel, this finding is very material as the defendants have already filed an application for ejectment against the plaintiff before the Rent Controller. On the other hand, the learned counsel for the respondent contended that the appeal is a continuation of the suit and, therefore, in view of the provisions of Order 23, Rule 1 of the Code, the plaintiff was entitled to withdraw the suit at any time. On behalf of the appellants reliance was placed on Kanhaiya v. Mst. Dhaneshwari, AIR 1973 All. 212.