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Hulas Rai Baijnath Vs. K.B. Bass and Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 686 of 1953
Judge
Reported inAIR1963All368
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 1
AppellantHulas Rai Baijnath
RespondentK.B. Bass and Co. Ltd.
Appellant AdvocateK.C. Saksena and ;A.P. Pande, Advs.
Respondent AdvocateS.S. Varma, Adv.
DispositionPetition dismissed
Excerpt:
civil - withdrawal of suit - order 23 rule 1 of code of civil procedure, 1908 - suit filed for rendition of accounts - issues framed - application filed for withdrawal of suit under order 23 rule 1 without seeking leave to file a fresh suit - held, plaintiff can withdraw suit unconditionally. - - walford, (1879) 4 qbd 217 was decided on the footing that an award by an arbitrator was like a general verdict of a jury. a partnership suit is a suit of a peculiar character, and the parties to such a suit do not stand to each other precisely in the same position as parties to suits generally. hero the plaintiff must ask for leave and must make out a case within clause (a) or (b), the court has no jurisdiction to allow such withdrawal with liberty unless the suit must fail by reason of some.....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.....
Judgment:

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.

4. Even if it be said that the petitioner wanted transposition of the parties, I have no doubt that no such transposition could be allowed by the trial Court. There were only one plaintiff and only one defendant. The moment the opposite party was removed from the array of plaintiffs there remained no plaintiff in the suit and the moment the petitioner was removed from the array of defendants there remained no defendant in the suit and there can never be a suit in which there is no plaintiff or there is no defendant. If there are two or more plaintiffs in a suit it is possible to remove any of them leaving one still in the array of plaintiffs, and, similarly, if there are two or more defendants it is possible to remove one or more of them still leaving at least one defendant in the array, but such a removal is impossible when there is only one person in the array.

5. There is no provision in the C. P. C., allowing such a transposition of parties as suggested by the petitioner. What is not provided for in the Code can be done by a Court only in exercise of its inherent powers to prevent an abuse of a process of Court or to secure the ends of justice. Neither of the objects is to be served by the suggested transposition of parties. A withdrawal of a suit for rendition of accounts is certainly not an abuse of a process of Court. There is no question of making the petitioner the plaintiff and the opposite party the defendant in the suit for securing the ends of justice, because it was always open to the petitioner to file a suit for recovery of the amount that it claims to be due to it. If the period of limitation for such a suit is still pending it can file a suit even now, and if it has run out, it has to thank itself for letting it run out. The institution of the suit by the opposite party did no justify its not filing a suit on the cause of action accruing in its favour; if it had filed a suit it might have been amalgamated with the opposite party's suit or would have been stayed under Section 10, C. P. C., but would not have been held to be not maintainable on account of the pendency of the opposite party's suit. The opposite party was under no obligation to keep its suit alive for the benefit of the petitioner; certainly the law could not require the opposite party to continue its suit so that the petitioner could get a decree in its favour.

6. The suggested transposition would raise questions of jurisdiction, limitation and court-fees. If the petitioner was made the plaintiff in the suit for rendition of accounts, it will be deemed to be a suit different from the suit instituted by the opposite party and would have to be within time. It is true that in a suit for accounts a decree is passed in favour of the defendant for the money found due in his favour, but that is the final decree and not a preliminary decree for accounts, and it is passed only when the accounting is gone through. In a suit for accounts a preliminary decree is passed in the plaintiff's favour for taking accounts. Consequently, even though the petitioner might have got a final decree in its favour, if on taking accounts a balance was found to be due to it, it cannot be said that it is in the same position as the plaintiff and can continue the suit on the cause of action accruing to the opposite party. If it wants a decree it must file a suit of the cause of action accruing in its own favour, it cannot take advantage of the cause of action that had accrued in the opposite party's favour and on the basis of which it had instituted the suit. Therefore, if it is brought over as the plaintiff it would have to show that its suit on the date of its being brought over was within time. Similarly, it would have to show that the suit would be within the jurisdiction of the trial Court. Since it claims a sum much larger than the pecuniary jurisdiction of the trial court, its suit would not be triable by it.

7. According to the plaint, the opposite party was the principal and the petitioner, the agent, and the petitioner was the accounting party. So the opposite party was entitled to a decree for accounts and not the petitioner. The petitioner could not get a decree for accounting against the opposite party, who was under no liability to render accounts to it. The accounts were maintained by the petitioner and the opposite party could not possibly render accounts to it. Since it maintained the accounts it knew how much was due to it from the opposite party and its cause of action was to sue for recovery of a specific sum of money and not for accounts. Since its cause of action was entirely different from that of the opposite party no transposition could be allowed. The suit for rendition of accounts could not be converted into a suit for recovery of a specific sum of money. Moreover, the case of the petitioner as stated in paras 8 and 9 of the written statement was that accounting had already been dons between the parties and a certain sum was found to be due to it. Thus it itself did not seek a preliminary decree for accounts. The prayer in para ii for a preliminary decree for accounting was only in the alternative; its real defence was that the accounting had already been done in November 1950 (the suit was instituted in April 1951).

8. The cases on which the petitioner relies have been discussed by my learned brother; they are distinguishable on facts. Each party in a suit for dissolution of partnership may be a plaintiff as observed in Devsey Khetsey v. Hirji Khairaj AIR 1942 Bom 35 but it does not follow that each party in a suit for accounts is a plaintiff. In a suit for dissolution of partnership each party is a partner having a right to sue for dissolution, but, as I pointed out above, each party in a suit for accounts has not a right to sue the other for accounting. Sm. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi : [1958]1SCR1287 does not help the petitioner because the transposition is not shown to be required in the ends of justice. In a suit for accounts there may be an undertaking by the plaintiff to pay to the defendant if anything is found to be due to him, as stated in Parmanand v. Jagat Narain, 7 All LJ 543, but there is no undertaking by him to continue the suit to the end and he can avoid the taking of accounts by withdrawing it. In McGown v. Middle-ton, (1883) 4 QBD 464 the plaintiff was not debarred from withdrawing the suit. A counter claim can be heard even if the suit is withdrawn, but there is no counter claim by the petitioner in the present suit. The Civil P. C. recognises set-off and not counter claims, and the petitioner has not claimed even a set-off. A defendant in a suit for accounts cannot claim the same right that was allowed to a reversioner in Mt. Jaimala Kunwar v. Collector of Saharanpur : AIR1934All4 and Atma Ram v. Beni Prasad 0049/1935 . The English law does not permit the withdrawal of a suit after a general verdict of the jury and Stahlschmidt v. Walford, (1879) 4 QBD 217 was decided on the footing that an award by an arbitrator was like a general verdict of a jury. Moreover, under the English law it was at the discretion of the Court to allow the discontinuance of a suit; not so under the Civil P. C. The observation in Seethai Achi v. Mayappa Chettiar : AIR1934Mad337 that withdrawal of a suit for accounts cannot end in its dismissal was an obiter dictum. In that case, as also in Debi Chand v. Parbhu Lal : AIR1926All582 the rights of the parties were settled either on account of a preliminary decree or on account of a compromise, and it was laid down that the suit could not be allowed to be withdrawn so as to unsettle them. A suit for accounts is not governed by the same law as governs an appeal in which a cross-objection is filed and the petitioner can derive no assistance from Kalyan Singh v. Rahmu, ILR 23 All 130. Under Order 41 Rule 22(4), C. P. C. a cross-objection is to be heard even if the appeal is withdrawn; so the existence of a cross-objection is no bar to withdrawal of the appeal, as pointed out in Dhondo Narayan v. Annaji Pandurang, AIR 1938 Bom 442.

Ramabhadran, J.

9. This revision petition, by a defendant arises out of a suit instituted by the plaintiff-opposite party Firm K. B. Bass and Co., Ltd., of Bareilly, for rendition of accounts and for a decree in respect of such sum, as may be found due from the defendant on the basis of such accounts. The suit was resisted by the defendant on the ground that Lala Shiv Charan, one of the partners of the plaintiff firm, had understood the account and a sum of Rs. 10,677/14/3 was found due from the plaintiff firm to the defendant, till Kartik Sudi Puranmasi Sambat 2007.

10. Nine issues were framed out of which issue No. 6 runs as follows:-

'How do the accounts stand and what sum, if any, is due from each party to the other.'

Issues Nos. 1 and 3, the onus of which lay upon the defendant, were given, up by his counsel, while similarly the plaintiff's counsel gave up issues 2 and 8. On 5-5-53, the plaintiff made an application for withdrawal of the suit under Order 23 Rule 1(1) without seeking permission to file a fresh suit on the same cause of action. This application was opposed by the defendant on the ground that it was not bona fide and he (the defendant) was entitled to a decree against the plaintiff for the sum found due to him, on payment of the necessary Court-fee. The trial Court was, accordingly, requested to dismiss the plaintiff's application for withdrawal of the suit and grant the defendant time to pay the necessary court-fee and, pass a preliminary decree for rendition of accounts. The trial Court holding that the plaintiff had an absolute right to withdraw the suit under Order 23 Rule 1 (1) C. P. C. allowed his application and dismissed the suit with costs to the defendant.

11. It is against this order that the defendant has come up in revision. The revision petition came up for hearing before Mr. Justice Mukerji, who referred it to a Bench, as, in his opinion, it involved a question of difficulty and therefore, it was advisable that it should be heard by a Bench of two Judges.

12. Sri A. P. Pande, for the applicant urged vehemently that the trial Court has erred in allowing the plaintiff to withdraw the suit, when the defendant had claimed a decree in his favour, for any sum that might be found due to him on taking of accounts. He submitted that in a suit for accounts the status (sic) and the latter had no absolute right to withdraw the suit. He contended that it was incumbent upon the trial Court to transpose the defendant to the array of a plaintiff and permit him to continue the suit. He, therefore, prayed that the order of the trial Court be set aside and the case sent back to it for further trial according to law. Mr. Pande also submitted that in a suit for accounts there is an implied undertaking by the plaintiff to abide by any decree that might be passed by the Court, even if the decree went against him and in favour of the defendant.

13. Reliance was placed by Mr. Pande ca the following authorities:

7 All LJ 543, wherein a Division Bench of this Court indicated that:-

'A suit for accounts, by a principal against an agent, where the agency is not denied, necessarily involves an undertaking by the plaintiff to pay the defendant any sum that may be found due to the defendant by him on the taking of accounts, and it is unnecessary that the defendant should plead a set off or counter claim.' : AIR1926All582 wherein a Division Bench of this Court observed:

'When once there has been a preliminary decree ordering the taking of accounts, if the plaintiff desires to withdraw his original claim for rendition, but the defendant desires the case to proceed, the proper course is to transpose the plaintiff to the position of defendant and make the defendant plaintiff.' : AIR1934All4 . There, the facts were that a suit was instituted by the Collector of Saharanpur on behalf of the estate of one Lala Janeshwar Das (the owner for the time being, Janeshwar Das's two widows, Mts. Jaimala Kunwar and Chando Kunwar) seeking a declaration that one Atma Ram, who alleged to have been adopted by Mt. Dhani Kunwar to her husband L. Deep Chand, the last male owner of the property in suit, was not at all adopted and that Janeshwar Das was entitled to the property and on his death, his widow was entitled to recover the property. The suit was withdrawn by the Collector despite opposition by the widows and one Beni Prasad who is the reversioner of the estate of Janeshwar Das. The Subordinate Judge permitted the Collector to withdraw the suit and dismissed the application made by the widows to be made a party to the suit. In directing that Beni Prasad be made a plaintiff to the suit and that the suit be tried as between Beni Prasad on the one side and the original defendant on the other side, Mukerji and Young, JJ. observed:

'Where the plaintiff sues in a representative character, it is not open to him to put an end to the litigation by merely withdrawing from the suit. He may no doubt, go out of the suit, but that does not put an end to the litigation where other people are interested in it and have a right to come in and continue the litigation'. This decision was maintained a appeal by their Lordships of the Privy Council, vide AIR MTYTYB PC 185.

14. : AIR1934Mad337 . There the facts were:

'Plaintiff, a widow, sued the brothers of her husband for account of the estate of her husband for recovery of certain documents, securities and for execution of documents in her favour, so as the enable her to realise the assets, due to her husband. The suit was compromised by which are third of the properties was to be given to another relation of her husband, who was not a party to the suit, and an application was filed by the stranger to be impleaded as a party to the suit and have the decree passed in accordance with the compromise, the plaintiff announced her withdrawal from the suit and prayed that the suit may be struck off the file.'

A Division Bench of that Court observed--

'Where a plaintiff withdraws from a suit before a final order of the Court is passed, after such withdrawal, the suit cannot be deemed in have been terminated. Ordinarily, when the Court finds no impedement to the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed but several exceptions have been recognised to this general rule, as for example, partition suit partnership, suit, suits for accounts etc.

* * * ......... the stranger wag entitled is apply to be impleaded as a party to the suit and that, though fee was not a party to the suit he was entitled to apply to have a decree passed in terms of the compromise and he was a person to whom valuable rights were assigned, under the compromise and the suit could not be dismissed merely on the withdrawal of the plaintiff from it.'

15. Ghulam Mohd. v. Ahad Sheikh AIR 1952 J and K 33. There, in a suit for partition the trial Court passed a decree in terms of tie com-promise entered into by the plaintiff with JKSBBS of the defendants. The Court passed an order transposing the, remaining defendants to the array of plaintiffs and the plaintiffs to that of the defendants. Setting aside the order of transposition. Wazir, C. J., agreed with the view taken is : AIR1934Mad337 (supra) and remarked that:--

'It was open to the defendants to file a separate suit to enforce their rights. But in a suit for partition, if a preliminary decree is passed declaring the definite shares of the several parties the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff for the obvious reason that the rights declared in favour of the defendant in the preliminary decree, would be rendered nugatory if the suit should simply be dismissed.'

16. Firm Bhawani Sahai-Salig Ram v. cHINA jjumal AIR 1937 All 376. There a Division Bench of this Court consisting of Collister and Bajpai JJ., indicated that:

'In a suit brought by a principal against an agent, for rendition of accounts, it is company for the Court at the time of passing a final decree, to pass a decree in favour of the agent upon the finding, that money was in fact, due to the agent from the principal and such decree is justified under Order 20 Rule 10 Civil P. C.'

17. Radhaballabh Prasad v. Raghunath Lal, AIR 1939 Pat 397. There, in a second appeal arising out of a rent suit, a Division Bench of the Patna High Court found that the proper persons to sue for the arrears of rent were the defendants second party (respondents 3-5 in second appeal), who presented a petition praying that they may be transposed from the category of defendants respondents to that of plaintiffs appellants. In holding that the transposition should be allowed Varma and Rowland, JJ., observed:

'The Court, including the High Court in second appeal, has power at any stage under Order 1 Rule 10 to permit a transposition of parties. The power is discretionary and its use will depend upon the circumstances of the particular case. The purpose of it is to enable the Court to be in a position to determine the real questions in controversy between the parties and to avoid allowing; mere technical objection successfully to defeat a just claim.'

18. AIR 1942 Bom 35, wherein, following Edulji Muncherji v. Vullabhoy Khanbhoy, ILR 7 Bom 167 Chagla, J., (as he then was), remarked:

'A partnership suit is a suit of a peculiar character, and the parties to such a suit do not stand to each other precisely in the same position as parties to suits generally. Each of the parties to a partnership suit, however he may be formally ranked, is really in turn plaintiff and defendant and in both capacities comes before the Court for the adjudication of his rights relatively to the other partners, which the Court endeavours to determine by its decree.'

'Hence in a suit for dissolution of partner-ship and for partnership accounts, under Order 1, Rule 10 the Court has the jurisdiction, in proper cases, to transpose defendants as plaintiffs, e. g., where it would work great hardship if the death of the original plaintiff, who filed a partnership suit far partnership accounts, should put an end to the suit.'

19. : [1958]1SCR1287 . That was an appeal against an order of the Calcutta High Court rejecting an application of one Smt. Saila Bala Dassi, praying to be brought on record as an appellant, in the appeal pending before the High Court. That appeal arose out of a mortgage suit in which a reliminary decree had been passed in 1935. The matter came before the Registrar for taking of accounts who found that a certain sum of money was due to the defendant mortgagee and on that a final decree was passed. Under the rules of the Calcutta High Court, (Original Side) a person in whose favour a decree is passed has to apply for drawing up of a decree within four days from the date thereof. If no such application is made within the time aforesaid, the decree shall not be drawn up except under the orders of the Court. The defendant took no action to have the decree drawn up for nearly eighteen years. In 1954, she obtained an ex parte order granting her leave for drawing up and completion of the decree.

That having been done, she filed the final decree and commenced proceedings for the sale of the mortgaged properties. Coming to know of this the mortgagor appeared before the Registrar and raised an objection to the execution of the decree on the ground of limitation. The matter came up before a learned Judge who held that the execution of the decree was not barred. In 1956 Sm. Saila Bala Dassi applied to be brought on the record as an appellant on the ground that she had purchased the properties in suit, free of all encumbrances. The application was strenuously opposed by the other side. It was dismissed by a Division Bench of the Calcutta High Court. In allowing the appeal their Lordships of the Supreme Court remarked:

'An appeal is a proceeding for the purpose of Section 146 and further the expression 'claiming under' is wide enough to include cases of devolution and assignment mentioned on Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding, would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code.

* * * *Section 146 was introduced for the first time in the C. P. C. 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense.'

20. Purshottam Haridas v. Amruth Ghee Co., Ltd., Guntur : AIR1961AP143 . There, a Division Bench of that Court in a suit for rendition of accounts and for the payment of the amount ascertained to be due, observed:

'......... there is no rule or principle of law, which requires a Court to pass a preliminary decree, invariably in every suit for accounts. Normally, a preliminary decree is granted in such suits, because it would be necessary to go into the accounts and a Court may think it advisable to appoint a Commissioner to ascertain the state of account between the parties. But that is not a rigid rule, which should be followed in every case irrespective of its circumstances.

In simple cases which do not involve much scrutiny of accounts, a Court is not bound to pass a preliminary decree but could straightway give a decree for a certain amount if the material on record enables it to do so.'

21. Reference was also made to an English decision in (1879) 4 QBD 217. There, after an action having been referred to an arbitrator to state a special case, and he had, in the case found the facts with regard to all but a very small portion of the claim in favour of the defendant, the plaintiff applied for leave to discontinue the action. In refusing to grant the leave Cockburn, C. J., remarked that the defendant in justice was entitled to the faults of the proceedings and he ought not to be deprived of them. He further pointed out that under Order 23 Rule 1 (of the British Code) it was a matter of discretion whether the plaintiff should not be allowed to discontinue the proceedings.

22. Reliance was also placed on (1883) 11 QBD 464. There the Court of Appeal held that by discontinuing an action after a counter-claim has been delivered, a plaintiff cannot put an end to it so as to prevent the defendant from enforcing against him the cause of action contained in the counter-claim.

23. Learned counsel for the opposite party rightly pointed out that in all the cases cited, by the applicant either a preliminary decree had been passed by the Court or a compromise existed or the suit was in a representative capacity or an award had been made, i. e., the basic rights of the parties had been decided. None of those factors exist in the present case. The power to withdraw the suit under Order 23 Rule 1 (1) is absolute. With regard to the English decisions in the two QBD cases (1879) 4 QBD 217 and (1883) 11 QBD 464 (supra), learned counsel for the opposite party pointed out that the English law is different from the Indian Law, because, unlike the English law the Indian law does not confer any discretion on the Court to insist upon the plaintiff to proceed with the suit or direct that the suit be continued by some one else. Under the Indian law, it is only when the plaintiff wishes to withdraw the suit with liberty to institute a fresh suit, in respect of the same subject-matter that leave of the Court has to be obtained under Order 23 Rule 1 (2). The rulings cited by learned counsel for the applicant do not apply to the facts of the present case. Here there is no award or compromise. The suit was not in a representative capacity and no preliminary decree had been passed.

24. The following authorities were cited by Mr. S. S. Varma for the opposite parties:

25. Hasan Badsha v. Sultan Razia Begum : AIR1949Mad772 wherein Sastri, J., observed as follows:

'A plaintiff in a suit can withdraw, of his own accord, without the permission of the Court. The only penalty attached to a withdrawal of the suit is that he is precluded from bringing a fresh suit on the same cause of action unless he obtains the leave of the Court for instituting a fresh suit under the provisions of Order 23 Rule 1, C. P. C. Normally speaking, therefore it is the right of a plaintiff to withdraw his suit, without reference to the convenience of the defendant and without obtaining beforehand the permission of the Court. But there is a limit to the exercise of this right of withdrawal. If, for instance, in a suit for partition or in a suit for the taking of the accounts of a dissolved partnership, there has been a preliminary decree, by which the rights of the parties have been fixed, then, it is not open to the plaintiff to withdraw the suit thereafter and thereby seek to wipe off the effect of the adjudication rendered by the Court, creating rights in the parties. Similarly, where in the course of a suit there has been a compromise arrived at between the parties with reference to the subject-matter of the litigation, it creates mutual rights and obligations between them and it is not open to the plaintiff, after such a compromise has been arrived at with reference to the subject-matter of the suit, to withdraw the suit and thereby seek to nullify the compromise. Where, however, the rights of the parties had not assumed any definite shape either under a decree of Court or under a compromise entered into between them, with reference to the subject-matter of the suit, it seems to rate that it is competent to the plaintiff to withdraw the suit and he cannot be forced to remain in the record at the instance of the defendant and prose-cute the suit.'

26. Veeraswami v. Lakshmudu : AIR1951Mad715 , wherein Ayyar, J., indicated that:

'The law regarding the withdrawal of a suit under Order 23, Rule 1 (1) gives the plaintiff the liberty to withdraw from a suit unconditionally on finding it unsustainable, or for any other reason No leave or order is necessary for this.

* * *The plaintiff need not assign any reason for such an unconditional withdrawal, Order 23 Rule 1 (2), C. P. C. contemplates a withdrawal from the suit, with liberty to bring a fresh suit. Hero the plaintiff must ask for leave and must make out a case within clause (a) or (b), the Court has no jurisdiction to allow such withdrawal with liberty unless the suit must fail by reason of some formal defect, under clause (a) or unless there are 'other sufficient grounds' for allowing the plaintiff to institute a fresh suit regarding the same subject-matter under clause (b).'

27. ILR 23 All 130, where Strachey, C. J., and Banerji, J., held as under:-

'Where no objections under Section 561 of the Civil P. C. have been filed by the respondent an appellant has an absolute right to withdraw his appeal at any time, before judgment; bat where such objections have been filed the appellant, if he wishes to withdraw his appeal, most do so before the hearing of the appeal has commenced.'

28. Baidyanath Nandi v. Shyama, Sundar Nandi : AIR1943Cal427 , where a Division Bench of that High Court, while dealing with the scope of Order 23 Rule 1, C. P. C. remarked, that:

'The operation of Sub-rule (4) is confined in cases where permission of the Court is necessary in order to enable the plaintiff to withdraw from his suit or in other words, it is applicable only when the plaintiff wants to have the liberty of instituting a fresh suit in respect of the same subject-matter. In such a case express leave of the Court is necessary .........'

29. Gainda Mal v. Madan Lal, AIR 1948 EP 30, where a Division Bench of that High Court while considering the scope of Order 23 Rule 1, C. P. C. observed that:

'It is, therefore, clear that if a plaintiff wishes to withdraw a suit or abandon a part of his claim he can do so at his sweet will. In certain case, it is necessary for him to obtain the permission of the Court under Sub-rule (2), bat according to the words of Sub-rule (3), the only penalty to which he subjects himself for not obtaining the Courts permission under Sub-rule (2) is that he shall be precluded from instituting any fresh suit in respect of the subject-matter or part of the claim about which he withdraws his suit or abandons his claim.'

30. At the risk of repetition, I may point out that in the present case there is no award or compromise, mo preliminary decree had been passed and them had been no adjudication, preliminary or otherwise, of the rights of the parties. With great respect, I am unable to agree with the view expressed by West, J., in ILR 7 Bombay 167 (supra), that a partnership suit is a suit of a peculiar character and the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally, and further that each of the parties in a partnership suit, however, he may be formally ranked, is really in turn plaintiff and defendant and in both capacities comes before THe Court for the adjudication of his rights relatively to the other partners. In the absence of a preliminary decree or award or com-premise, obviously it is open to the plaintiff, under Order 23, Rule 1 to withdraw a partnership suit like any other suit.

31. I respectfully agree with the view ex-pressed in : AIR1949Mad772 , AIR 1948 EP 30 and : AIR1943Cal427 . The Court below was right in holding that the present plaintiff had an (sic) right to withdraw the suit. Consequently, I would dismiss this revision petition with costs.


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