- (1.)Vide impugned order dated 4.2.1987 learned Additional District Judge, Narnaul allowed the plaintiff-respondent to withdraw the suit and he, accordingly, dismissed the suit as withdrawn. As a consequence, he observed that the appeal preferred by the plaintiff (respondent-herein) has been rendered nugatory and is disposed of as having been rendered nugatory. Order passed by the learned Additional District Judge, Narnaul dated 4.2.1987 impugned through this Civil Revision reads as follows:-
"In view of statement made by plaintiff/appellant and his learned counsel, the suit for injunction brought by him - the appeal being its re-hearing and continuation of proceedings therein - is hereby dismissed as withdrawn, and the judgment and decree passed by the trial Court is substituted and an order dismissing the suit as withdrawn. Consequently, the appeal preferred by the plaintiff has been rendered nugatory and is disposed of accordingly. The parties are left to bear their own costs of these proceedings."

Learned counsel for the defendant-petitioners submits that the Appellate Court could not have permitted the dismissal of the suit as withdrawn. It was the trial Court, who could have permitted the dismissal of the suit as withdrawn at any time when the suit was pending before it. He submits that the impugned order passed by the learned Additional District Judge, Narnaul is without jurisdiction and is patently illegal. In support of this submission, he brings to my notice Jubedan Begum and Ors. v. Sekhawat Ali Khan, A.I.R. 1984 Punjab and Haryana 221 where the following observations were made by this Court:

"The words "at any time" in Order 23, Rule 1 would apply to the suit pending in the trial Court. Once the decree is passed by the trial Court, then 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 the instant case, the plaintiff tenant filed a suit for declaration that he had paid rents for the premises and he was not in arrears. The plaintiff could prove that he had paid rents for certain period only and his suit was dismissed. During pendency of appeal filed by him he filed an application for withdrawal of suit and it was allowed. The defendant had in the meantime filed a suit for ejectment.

Held, that the lower appellate Court acted illegally in allowing the plaintiff, to withdraw the suit after setting aside the judgment and decree of the trial Court dismissing the suit."

(2.)He brings to my notice. Shri Guru Maharaj Anandpur Ashram Trust Guna and Ors. v. Chander Parkash and Ors., (1986-1)88 P.L.R. 319 where the following observations were made"
"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 has acted illegally by allowing the plaintiff 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.

For this view, reliance was placed upon Chander etc. v. Gulzqri Lal etc., (1979)81 P.L.R. 637 and K. Chinna Vaira Thevar v. S. Vaira Thevar, A.I.R. 1983 Madras 160. In my opinion, the learned Appellate Court could not have permitted the plaintiff the withdrawal of the suit as with the dismissal of the suit certain rights had become vested in the defendants and they could not have been deprived of those rights.

(3.)For the reasons given above, this revision is accepted and the impugned order dated 4.2.1987 passed by learned Additional District Judge, Narnaul is set aside. Learned Additional District Judge is directed to hear the appeal afresh and decide it on merits as early as possible, at any rate, till 31.3.2000 A.D. Parties shall appear before the learned Additional District Judge, Narnaul on 25.10.1999.