Iqbal Singh Tiwana, J. - (1.) Daulat Ram, Plaintiff -Appellant filed a suit for possession of land against Defendant -Respondents 1 to 4 and during the pendency of that suit, made an application on December 6, 1976, with the request that he wanted to withdraw the suit and the same be dismissed. The trial Court, However, failed to pass any order on that application till April 29, 1977 when Hardial Singh one of the Defendant -Respondents put in an application praying to the Court to dismiss the suit of the Plaintiff in terms of his application dated December 6, 1976. The Plaintiff contested this prayer of Defendant Hardial Singh. The Plaintiff's counsel made a submission on June 8, 1977 that the original application dated December 6, 1976 was made only qua one Defendant, that is, Parkash Chand. The Plaintiff, according to the learned Counsel, had abandoned his claim against Parkash Chand only and wanted to continue his claim in suit against the other Defendants. The trial Court not accepting this stand of the Plaintiff, dismissed his suit.
(2.) On an appeal by the Plaintiff, the lower Court, vide the judgment under appeal, held that the Plaintiff was fully competent to with draw his prayer made in his application dated December 6, 1976 for the dismissal of the suit before any order was passed on that application. The said court further found that the Plaintiff had withdrawn his joint only qua Parkash Chand Defendant and not qua the other Defendants. Thus upsetting the judgment and decree of the trial Court, the case was sent back to the said Court for proceeding with the same in accordance with law.
(3.) Now the sole submission of Mr. M.S. Jain, learned Counsel for the Appellants before me is that the lower appellate court has not properly construed the provisions of Order 23, Rule 1, Code of Civil Procedure as it stood on the date of the filing of the application dated December 6, 1976, by the Plaintiff and that no Order was required to be passed on that application as the Plaintiff had an absolute right to withdraw or abandon the suit. For this proposition, the learned Counsel seeks support from a Division Bench judgment of the Allahabad High Court in Smt. Raisa Sultana Begam and Ors. v/s. Abdul Qadir and Ors. : AIR 1966 All 318. On the face of it the submission of the learned Counsel appears to be attractive but this Court in teja Singh and Anr. v/s. Gurdial Singh and Ors., 1970 Cur.LJ 861, has after considering the above noted judgment of the Allahabad High Court, taken the view that it is not correct to say that as soon as the Plaintiff files an application for the withdrawal of the suit, the suit automatically stands withdrawn. There is nothing the Code of Civil Procedure or otherwise on general principles which could prevent a person who had filed an application, to withdraw the same more so if there is no allegation that such an app location had meanwhile adversely affected the interest of any party or any person has changed his position for the worse relying on that application for withdrawal of the suit. This judgment, to my mind, squarely covers the merits of the case in hand.;