- (1.) The revision is by the defendant who is aggrieved that a suit for injunction filed by the respondents was dismissed on a contest that in the trial court, a plea in defence had been that the plaintiff was an unauthorized occupant and the claim by him that he was a tenant was not true. In the appeal against the decree of dismissal, he had moved an application for withdrawal of the appeal and the suit and the court has allowed for both the suits and the appeal to be withdrawn. The defendant is in revision to point out that while the plaintiff may abandon the suit by resort to Order 23 Rule 1 CPC without any fetter bring the trial stage, such a privilege does not extend in the appellate court to abandonment of the suit. He may choose to abandon the appeal but he cannot have an order allowing for the suit to be also dismissed as withdrawn. This would mean effacing adverse findings that have been recorded all together. Such an order ought not to be passed. The counsel would refer me to the decision of the Supreme Court in R. Rathinavel Chettiar Versus V. Sivaraman, 1999 4 SCC 89 that held that once a decree is passed by the trial court and it is challenged in appeal, it would not be open for the plaintiff to withdraw the suit so as to destroy the decree and the rights which have come to be vested in the parties unless very strong reasons are shown that it would not cause prejudice to anybody's vested rights. The point has been also considered in the judgment of this court in Gian Chand Verus Pavitar Singh-1993 PLJ 360 and yet another judgment in Raj Rani Versus Ram Lal, 1999 2 PunLJ 105.
(2.) The counsel for the respondents has two alternative arguments to make: one, the court may direct the applications already filed for withdrawal to be disposed of with a direction for fresh consideration on merits by the appellate court; or retain the order itself as passed, for, no prejudice could be caused to the Improvement Trust, for, after all, only his suit has been dismissed and the Improvement Trust has not an executable decree which could be effaced by withdrawal of the suit. I reject both these contentions of the respondents and allow the civil revision for the following reasons.
(3.) Withdrawal of a suit and withdrawal of appeal have different legal consequences. A withdrawal of an appeal at the appellate court will mean abandonment of appeal and confirmation of the judgment already given. There is no fetter for any person to have the appeal withdrawn, for, the law takes this course that a party, who was abandoned an important forum of adjudication for prosecution of the case, will be barred from agitating the same right at the same forum. To that extent the respondent in appeal cannot be prejudiced if an appeal is withdrawn. If ever a suit is also withdrawn, it will be wrong to assume because the defendantrespondent did not have an executable decree, no prejudice could be caused. If, in this case, the suit had been filed for injunction on a plea that he was a tenant and the defendant was contending that the defendant was not a tenant and that he was an unauthorized occupant and the court renders an adjudication on merits and holds the plaintiff to be an unauthorized occupant and dismisses the suit, the decision will become final if the appeal alone is withdrawn. If the suit is also permitted to be withdrawn, it means that in a future action by the defendant against the same plaintiff characterizing him as an unauthorized occupant, the plaintiff can have an objection taken again that he is not an unauthorized occupant and vex a repetition of the same proceedings and seek for adjudication also that he was only a lessee. That cannot be permitted to be done. The prejudice is serious, for, it may impair the defendant to work out any rights which have accrued through the dismissal of the plaintiff's suit.;