- (1.) This appeal has come up in the list for "dismissal of the appeal for non-prosecution". On behalf of the appellant No.2, a letter has been submitted today before the Court written by Tarapada Sarkar (Sardar) addressed to Sf1ri Amiya Kumar Chakraborty which bears no date. In the said letter, the alleged signatory Tarapada Sarkar (Sardar) has made his communication to Mr. Amiya Kumar Chakraborty learned Advocate which is as follows : "I am nct willing to proceed with the above second appeal. You are therefore requested to withdraw the same."
(2.) On placing this letter, the learned Advocate Mr. Amiya Kumar Chakraborty appearing for the appellant No.2 submits that appeal should be dismissed for non-prosecution. According to Mr. Chakraborty initially there were two appellants; (1) Nripendra Nath Sarkar (Sardar) and (2) Tarapada Sarkar (Sardar) and there were two respondents (1) Gobordhan Naskar and (2) Dhirendra Nath Naskar. According to Mr. Chakraborty, the appellant No.1 has died long back and he is appearing for the appellant No.2. The heirs of the appellant No.1'has not been substituted and only the appellant No.2 is continuing. Now he does not want to proceed with the case and consequently the appeal should be dismissed for default or dismissed for non-prosecution. The learned Advocate Mr. Chakraborty refers to the provisions of Order 41 Rule 17(1) of the Code of Civil Procedure and the said provision is quoted herein : 17(1)-Dismissal of appeal for appellant's default : "Where on the death fixed, or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed."
(3.) The learned Advocate Mr. Ghosh appearing for the respondent No.2 Dhirendra Nath Naskar seriously opposes such prayer of Mr. Chakraborty regarding the dismissal of this appeal. Mr. Ghosh relies on the provisions of Order 23 Rule 1(1) of the C.P.C. and submits that this does not give an absolute right to the plaintiff to withdraw the suit at any rate at this second appeal. Mr. Ghosh in this regard relies on a decision reported in AIR 1962 Allahabad 263, Kedar Nath & Ors. v. Chandra Kiran & Ors. Mr. Ghosh for the purpose of. consequence of such a prayer as made by the learned Advocate for the appellant relied on a decision reported in AIR 2002 Karnataka 76, Smt. Sowramma v. Nanjappa & Ors. Mr. Ghosh submits in this case the steps to be taken or procedure to be adopted by the Courts has been mentioned in Paragraph 16 of the judgment delivered by Hon'ble Karnataka High Court. Heard the submissions made by the learned Advocate for the parties and perused the records.;