CHHANUBHAI MANSUKHI Vs. DAHYABHAI GOVIND

JUDGEMENT

(1.) THIS appeal deals with the question whether an appellate Court can allow a plaintiff appealing against an order dismissing his suit to withdraw his suit with liberty to bring a fresh suit. In this case the plaintiff had brought a previous suit which was dismissed. On appeal when the respondent was duly represented by his pleader the appellate Court allowed a withdrawal and recorded its reasons for so doing. Now when the plaintiff has brought this suit, he is met with the plea of res judicata. The plea is based on the argument that the appellate Court had no jurisdiction to allow the plaintiff to withdraw the previous suit with liberty to bring a fresh suit. The appellant has relied upon a decision of this Court in Eknath v. Banoji (1911) I.L.R. 35 Bom. 261 : 13 Bom. L.R. 237 There the facts were that the appeal had not been admitted, and before the admission the Court in effect set aside the decree dismissing the suit and allowed the plaintiff to withdraw his suit. Clearly the appellate Court had no jurisdiction to deal with the order of the lower Court because the appeal had not been admitted. Once the appeal is admitted, then the whole of the case is re-opened. The suit is still proceeding, and the Court has jurisdiction to allow a party to withdraw his case at any time during the continuance of the proceedings, provided of course it proceeds in the proper way and hears both parties. It cannot be said that an appellate Court has no jurisdictiou to deal with the case in whatever way it pleases. I6s decision may be wrong, but that is not a question of jurisdiction. I cannot see myself why an appellate Court cannot, when an appeal has been admitted, and when both parties are represented before it, allow the plaintiff to withdraw his case, on proper terms, and allow him to start afresh. The appeal is dismissed with costs. Heaton, J.

(2.) I concur.