- (1.) JUDGEMENT :- This appeal by the plaintiff Manohar Singh is directed against the judgement and decree of learned District Judge, Udaipur dt. 11-7-1975. When the suit was filed Manohar Singh had claimed 1/3 share in the immovable property which consisted of a house belonging to the Joint Hindu Family. According to the plaintiff Manohar Singh the house was a Joint Hindu Family Property in which he, his brother Ganeshlal and their mother Badanbai had 1/3 share each. It may be mentioned at this stage that one Khubilal had purchased 1/2 share of Ganeshlal in an auction sale in a decree against Ganeshlal. A preliminary decree was passed by Senior Civil Judge, Udaipur on 2-6-1960 declaring 1/3 share of the plaintiff in the joint family property. An appeal was preferred against this judgement by the legal representatives of Khubilal and this Court by judgement dt. 30-9-1970 in S. B. Civil Regular First Appeal No. 144/60 Basantilal v. Manohar Singh, set aside the judgement and decree passed by the Civil Judge and remanded the case for giving a decision afresh. After the remand of the case Smt. Badaribai expired and in these circumstances learned District Judge held that both Manohar Singh and Ganeshlal now being entitled to share in the property, a preliminary decree declaring Manoharsingh and Ganeshlal having share each in the property in dispute vas passed for partition. It was also held by the learned District Judge that 1/2 share belonging to Ganeshlal had been purchased by Khubilal and as such his successors would be entitled to share belonging to Ganeshlal.
(2.) Aggrieved against the aforesaid judgement this appeal has been filed by the plaintiff. Mr. Shishodia learned counsel for the appellant first contended that the plaintiff had submitted an application on 30-1-1975 under O.23, R.1, C.P.C. for withdrawing the suit. The trial Court dismissed that application by order dt. 15-3-75. It was argued that the plaintiff had an absolute and unqualified right to withdraw the suit under O.23, R.1, sub-rule (1), C.P.C. and there was no necessity of obtaining any permission from the Court and the trial Court was wrong not to give permission for withdrawing the suit. Mr. Shishodia in this regard placed reliance on M/s. Hulas Rai v. Firm K.B. Bass and Co. (AIR 1968 SC 111). This case was instituted for rendition of accounts by a principal against his agent. The plaintiff submitted an application for withdrawing the suit. Their Lordships of the Supreme Court in this case observed as under :- "In a suit for rendition of accounts by principal against his agent the principal is entitled to withdraw the suit even at the stage when issues have been framed and some evidence has been recorded but no preliminary decree for rendition of accounts has yet been passed. The defendant cannot insist that the plaintiff must be compelled to proceed with the suit. AIR 1934 Mad 337, Explained and Disting. AIR 1963 All 368, Affirmed. The language of O.23, R.1, sub-rule (1) gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is sought under sub-rule (2) of that Rules, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under sub-rule (3) of that Rule. There is no provision in the Civil P.C. which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under O.8, or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. Further in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree from the principal."
(3.) In my view the above case is distinguishable from the case in hand which is a suit for partition of joint family property. In a suit for rendition of accounts by the principal against its agent, their Lordships have observed that in a case of a suit between principal and agent it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree from the principal. In this background when the principal wanted to withdraw the suit for rendition of accounts against an agent it was held that O.23, R.1, sub-rule (1) gave an unqualified right to a plaintiff to withdraw from a suit and no permission is necessary under sub-rule (2) of O.23, C.P.C.;