Desai, C.J. - (1.) I agree with my brother Ramabhadran that this application should be dismissed with costs.
(2.) The opposite party's application for withdrawal of the suit was opposed by the applicant, who contended before the trial Court that the application be dismissed and that a preliminary decree for rendition of accounts be passed on its paying the Court-fee. The application of the opposite party was a simple application withdrawing the suit without seeking permission to file a fresh suit. It had the absolute right to withdraw the suit at any time; it did not stand in need of any leave of the Court for withdrawing. The question of the leave of the Court would have arisen only if it had asked for leave to file a fresh suit. The petitioner could not resist the withdrawal of the suit and the Court could not compel the opposite party to continue it. I do not understand what could be the opposite party's "game" in withdrawing the suit even if it had been pending for a long time and the petitioner had incurred considerable expenditure on it; on the suit being withdrawn it was open to the Court to award the petitioner its costs and it did award them and, therefore, no question of its having incurred considerable expenditure on the litigation arose. The mere fact that the suit had been pending for a long time did not at all affect the opposite party's right to withdraw it.
(3.) It is to be noted that the petitioner did not want to be brought over as plaintiff and the opposite party to be brought over as defendant in the suit; what it wanted was a decree for rendition of accounts on its paying the Court-fee, and this relief could not possibly be granted to it. No preliminary decree for rendition of accounts could be passed unless the suit continued, and the suit could not be continued after the opposite party exercised its absolute right of withdrawing it. No payment of court-fee was required, even by the petitioner, for the passing of a preliminary decree for rendition of accounts; the necessary court-fee had been already paid by the opposite party.;