GURU MAHARAJ ANANDPUR ASHRAM TRUST Vs. CHANDER PARKASH

JUDGEMENT

(1.) The plaintiffs/respondents filed the present suit for declaration on 22nd Dec. 1978. Their suit remained pending for about four years when it was ultimately dismissed on 29th Nov., 1982. An appeal against the said judgment and decree of the trial court was filed on 14th Dec., 1982. On 31st Jan., 1983, the plaintiffs moved an application for seeking permission to lead additional evidence. Reply to the application was filed on 19th Sept., 1983. Without getting any orders on the application, the plaintiffs moved an application dt. 22nd Oct.,1984, for permission to file a fresh suit on the same cause of action. This application was contested on behalf of the defendants. However, the learned District Judge, vide impugned order dt. 23rd Oct., 1984, allowed the application for withdrawal of the suit on payment of Rs.200/- as additional costs.

(2.) Learned counsel for the defendants-petitioner submitted that in view of the finding under Issue No.6, the suit was liable to be dismissed even if Issue No.2 was not there. In any case, argued the learned counsel, the suit could not be allowed to be withdrawn at the appellate stage when there was already a decree of the trial court dismissing the suit. According to the learned counsel, the suit remained pending for about four years, and when the plaintiffs failed there, they moved the present application for withdrawal as a last resort, and that too after about two years of the filing of the appeal. Under these circumstances, argued the learned counsel, the suit could not be allowed to be withdrawn in-appeal. In support of his contention he referred to K. Chinna Vaira Thevar v. S. Vaira Thevar, AIR 1983 Mad 160; Jubedan Begum v. Sekhawat AH Khan, AIR 1984 Punj and Har 221 and Chander v. Gulzari Lal 1979 Cur LJ 483. On the other hand, learned counsel for the plaintiffs/respondents submitted that even if there was no formal defect, as such, in the suit, there were sufficient grounds for allowing the suit to be withdrawn. He cited Joginder Singh v. Mohinder Singh, 1978 Pun LJ 9 to support his contention.

(3.) After hearing the learned counsel for the parties, I am of the considered view that the plaintiffs could not be allowed to withdraw the suit at the appellate stage, on the facts and circumstances of the present case. Admittedly, they moved application dt. 31st Jan., 1983, for permission to lead additional evidence. Without getting any orders thereon, they moved the application for the withdrawal of the suit, which was not warranted on the facts and circumstances of the case. In Jubedan Begum's case. (AIR 1984 Punj and Har 221) (supra) this Court has taken the view that the words "at any time" in O.23, R.1, C.P.C., would apply to the suit pending in the trial court. Once the decree is passed by the trial Court, certain rights are vested in the party in whose favour the suit is decided. Thus, the plaintiff is not entitled to withdraw the suit as a matter of course at any time after the decree is passed by the trial court. In these circumstances, the lower appellate Court has acted illegally by allowing the plaintiffs to withdraw the suit after setting aside the judgment and decree of the trial court dismissing the suit. If some new evidence had come into possession of the plaintiffs after the passing of the decree by the trial court, they could seek permission for leading additional evidence for which an application had already been filed but that by itself was no ground to withdraw the suit.