RAJ RANI Vs. RAM LAL

JUDGEMENT

(1.) Plaintiff-Respondent is the son of late Diwan Chand. He instituted a suit for possession by partition of shop marked ABCDEF shown in red colour in the site plan attached to the plaint. Defendants 1 to 4 are heirs of Sat Pal deceased who was also one of the son of late Diwan Chand. Defendant No. 5 is also the son of Diwan Chand. The suit was contested by the defendants on various grounds and one of their pleas was that Diwan Chand deceased had executed a will dated 13.1.1983 in favour of Raj Rani widow of Sat Pal and Kharaiti Lal. Pleading of the parties gave rise to the following issues:

(2.) On a consideration of the oral and documentary evidence led by the parties, the trial Court decided issues No. 1 and 1 -A in favour of the defendants and against the plaintiff and it was held that Diwan Chand deceased did execute a valid will on 13.1.1983 in favour of Raj Rani and Kharaiti Lal and that the plaintiff was not entitled to possession of the suit property which stood bequeathed to the defendants under the will. Feeling aggrieved by the judgment and decree of the trial court the plaintiff preferred an appeal before the District Judge, Gurdaspur. When this appeal came up for hearing on December 20, 1996 the plaintiff-respondent made a statement and withdrew the suit. The lower appellate court then dismissed the suit as withdrawn and so also the appeal. It is against this order that the present revision petition has been filed.

(3.) Ms. Mann, counsel for the petitioners strenuously contended that the suit having been dismissed by the trial Court after contest by the parties could not be allowed to be withdrawn at the appellate stage thereby depriving the defendants of the rights which came to vest in them as a result of the findings recorded by the trial court. Shri Rajive Bhalla, Advocate for the plaintiff-respondent, on the other hand, urged that under order 23 Rule 1 of the Code of Civil Procedure (for short the Code) the plaintiff could withdraw his suit at any time even at the stage of appeal. It is contended that an appeal being only a continuation of the suit and the decree of the trial Court not being final, no right comes to vest in the defendant with the dismissal of the suit and, therefore, the plaintiff can always withdraw his suit under Sub-Rule (1) of Rule 1 of Order 23 of the Code.