KIDAR SINGH Vs. NAR SINGH

JUDGEMENT

(1.) This appeal is directed against the order of the Additional District Judge, Karnal, dated the 31st January, 1981, whereby in appeal, he allowed the application filed on behalf of the plaintiff respondent for withdrawal of his suit which was dismissed by the trial Court.

(2.) The plaintiff respondent filed the suit for permanent injunction alleging that he was the owner in possession of the disputed property. However, this plea of the plaintiff was negatived by the trial Court and ultimately the suit was dismissed on 15th September, 1978. Dissatisfied with the same, the plaintiff filed the appeal in the Court of Additional District Judge, Karnal. During the pendency of the appeal, he moved an application dated 19th January, 1981, in which it was prayed that he may be allowed to withdraw the suit because the defendant is no more threatening on account of which the suit for injunction was filed. This application was contested on behalf of the defendant. However, the learned lower appellate Court accepted the application and thus the plaintiff was allowed to withdraw his suit on payment of costs. Dissatisfied with the same, the defendant has filed this appeal in this Court.

(3.) The learned counsel for the appellant contended that in view of the provisions of Order 23 Rule 1, Code of Civil Procedure, the plaintiff may abandon his suit or a part of his claim against all or any of the defendants, but there is no provision for withdrawing the suit. The learned counsel pointed out that before amendment of the Code of Civil Procedure in the year 1976, such a provision for withdrawal was there, but in the amended Code of Civil Procedure, the word 'withdraw' has been taken away. Thus, argued the learned counsel, the plaintiff could abandon the suit, but under no circumstances, he could be allowed to withdraw the same. It was also argued that even that could be done at the trial stage and not at the appellate stage.