1. This is a plaintiffs second appeal from a concurrent decree of dismissal of his suit for demolition of a wall. Alleging that the defendants have constructed a wall on the village path-way thereby obstructing it, the plaintiff's user of it as of right has been infringed a decree for demolition of the wall and for injunction restraining the defendants from obstructing the plaintiff from exercising his right of way over the disputed land was sought. The defence was a denial of the (plaintiff's allegations. It was pleaded that the defendants had raised the wall on the old foundations of their Gher and no public pathway ever existed on the land in dispute. It appears that there was a hint in the plaint of some kind of prescriptive right of easement founded on a user of the land in dispute as a pathway but in the trial itself what was sought to be established was that the land in dispute over which the wall had been constructed by the defendant was a village pathway. The plaintiff failed to establish by the evidence on record that the land in dispute formed part of the village pathway. A finding was also recorded that the wall had been constructed by the defendants on their old foundations. On these findings the suit of the plaintiff was dismissed. This appeal is apparently concluded by findings of fact. During the course of his argument the learned counsel for the plaintiff-appellant made an application for withdrawal of the suit by the plaintiff. This prayer was opposed by the learned counsel for the defendant-respondents.
2. The consensus of opinion in this court is that in an appeal a plaintiff can withdraw his suit under Order 23 rule 1, Civil Procedure Code with the permission of the court. An absolute right to a plaintiff to withdraw from the suit in appeal from the decree of dismissal of his suit has been denied to him on the ground that after passing of the decree of dismissal in the suit on the findings recorded in favour of the defendant the latter gets some vested rights. I have never been able to appreciate what kind of vested right accrues to a defendant when the suit of the plaintiff is dismissed in toto. particularly in suits for mere injunctions. It was suggested by the learned counsel for the defendant respondents that the findings recorded in the suit on the issues and controversies arising on the pleadings of the parties by themselves are of great value to the defendants and may in future litigation operate as res judicata. It is difficult for me to hold that such a kind of benefit can be termed as a vested right. However, such a line of argument has found acceptance at the hands of some Judges of this Court and it has been held by them that the benefit that accrues to a defendant on the findings recorded, as they can be used in future as res judicata between the parties takes away the absolute right of the plaintiff to withdraw from the suit in appeal from the decree of dismissal.
3. Under Sub-rule (1) of Rule 1 of Order 23 of the Civil Procedure Code a plaintiff is at liberty to withdraw at any time after the institution of the suit or abandon part of his claim. When a plaintiff withdraws a suit or abandons a part of the claim without permission to institute a fresh suit in respect of the same subject-matter, he shall be liable for costs. In Raisa Sultana v. Abdul Qadir (AIR 1966 All 3181 a Division Bench of this Court has taken the view that by an application under sub-rule (1) of Rule 1 of Order 23 a plaintiff signifies his willingness to withdraw the suit and nothing else is to be done by the Court nor even a formal order need be passed. The suit would only be struck off. The Court will only saddle the plaintiff with costs. In the case of Bhagwat Prasad v. Raghunath Prasad (1962 All LJ 915) a learned Single Judge held that when the decree of the trial Court has not become final on account of an appeal being preferred by one party or the other, the plaintiff can withdraw the suit. The withdrawal can be with or without the permission of the Court. If the suit is withdrawn with the permission of the Court, the plaintiff can institute another suit within the period of limitation. But if he withdraws the suit, without the permission of the Court he cannot seek remedy afresh,
4. It was urged by the learned counsel for the plaintiff appellant that the appeal being in continuation of the suit and the decree of the Court below not being final, it is always open to the plaintiff to withdraw his suit under Sub-rule (1) of Rule 1 of Order 23 and costs will be payable by the plaintiff since he is not seeking permission to bring a fresh suit on the same subject matter. In view of the consenus opinion of this Court, the learned counsel for the plaintiff-appellant did not claim for the plaintiff that he has an absolute right to withdraw from the suit, but contended that a Division Bench of this Court in the case of Vidhyadhar Dube v. Har Charan. : AIR1971All41 , has held that Sub-rule (1) of Rule 1 of Order 23 of the Code does not in terms apply to appeals and. whatever may be the legal position in the trial Court, in the appellate Court the plaintiff, be he an appellant or a respondent, cannot be held to possess any absolute right to withdraw the suit, but the appellate Court may permit the plaintiff to withdraw the suit when by such withdrawal no vested or substantive right of the defendant is to be adversely affected. A question then arises under what provision of the Code has an appellate Court power to allow the withdrawal of the suit by the plaintiff conceding that the plaintiff has no absolute right? The Division Bench observes that Sub-rule (1) of Rule 1 of Order 23 of the Civil Procedure Code does not in terms apply to appeals. I do not think I should take the matter to the point of dissent from the observations of the Division Bench in : AIR1971All41 (Supra) as there is ample authority of this Court in favour of the view that a plaintiff can always withdraw from a suit even at an appellate stage and the appellate Court has power to allow the withdrawal under Order 23. Rule 1. C. P. C. In a Division Bench decision in the case of Afzal Begam v. Akhari Khanam. ILR 37 All 326 = (AIR 1915 All 123), it has been held that an appellate Court can under Order 23. Rule 1. C. P. C. give a plaintiff whose suit has been dismissed by a Court of first instance permission to withdraw his suit and give him leave to institute a fresh one. In Ratan Lal v. Mohammed Hamidullah Khan, AIR 1921 All 65 the power of an appellate Court to substitute a decree for dismissal of a suit with an order. Under Order 23. Rule 1 permitting the plaintiff to withdraw from the suit with liberty to institute a fresh suit in respect of the subject-matter of the same was recognised. These two authorities were not noticed by the Division Bench in the case of : AIR1971All41 (supra). I would proceed, therefore, on the basis that the plaintiff-appellant can take the benefit of the provisions of Sub-rule (1) of Rule l of Order 23 of the Civil Procedure Code to withdraw from the suit. Though I have in Kamta Prasad v. Gaya Prasad. : AIR1972All143 , held that even before the appellate Court the plaintiff has an unqualified right to withdraw the suit without seeking permission to file a fresh suit on the same subject-matter but another learned Single Judge in the case of Kanhaiya v. Dhaneshwari : AIR1973All212 , has taken the view that the plaintiff will have no unqualified right at the appellate stage to withdraw his suit
5. The learned counsel for the plaintiff appellant does not claim the order for withdrawal on the basis of absolute unqualified right enuring in the plaintiff. He submits that in view of the ratio of decision In : AIR1971All41 (Supral, this Court may permit the plaintiff to withdraw the suit as by such withdrawal no vested or substantive right of the defendants is to be adversely affected. In reply the learned counsel for the defendant-respondents submitted that the defendants' vested rights would be adversely affected inasmuch as the findings recorded by the trial Court and affirmed by the lower appellate Court would be set aside and whatever benefits accrued to the defendants will no longer be available to them. I do not think the findings recorded on the issues arising in the suit confer any vested or substantive right on the defendants. In fact what has been decided in the suit is that the plaintiff failed to establish that the land in dispute was the village pathway. I am not impressed with the contention put forward on behalf of the defendants respondents that in the suit a finding has been recorded in favour of the defendants that the land in dispute belonged to them. Even if there was a finding to this effect in the suit, it will not confer any vested or substantive right on the defendants. The decree of dismissal of the suit by itself does not confer any right on any party to the suit. Moreover, on the allegations in the plaint the Land in dispute was said to be a village Pathway. There had been some litigation also in the past about this land. If the plaintiff is allowed to withdraw the suit, the defendants will not be affected adversely as by the withdrawal of the suit the cloud, if any, on the defendants' right would vanish. They will not be in a more disadvantageous position than in what they were because of the decree of dismissal of the suit. It has been stated in the application for withdrawal that a representative suit by the residents of the village would be filed as the interest of general public is involved. On a consideration of the entire circumstances of the case. I think the plaintiff-appellant may be permitted to withdraw the suit on payment of all the costs hitherto and of this appeal.
6. Accordingly, I substitute the decree of dismissal of the suit by an order permitting the plaintiff to withdraw the suit on payment of all the costs incurred in the two Courts below and of this appeal.