S.C. Mohapatra, J.
1. Defendant No. 1 is the petitioner against the order of the learned Additional Subordinate Judge, Cuttack, permitting withdrawal of the suit by the plaintiff-opposite party No 1 under Order 23, Rule 1, C. P. C.
2. The suit is of the year 1957. It came up to this Court in second appeal. While disposing of the appeal the suit was remitted back to the trial Court for issue of a commission for measurement of the land in dispute and for disposal of the suit in accordance with law. At that stage the plaintiff filed an application for withdrawal of the suit on the ground that in view of the Orissa Public Premises (Eviction of Unauthorised Occupants) Act, 1972 coming into force the suit is not maintainable. The trial Court has permitted the withdrawal of the suit which is being challenged in this Civil Revision.
3. Mr. R. K. Mohapatra, the learned counsel for the petitioner has pressed into service a decision reported in A. I. R. 1979 Patna 73 : Basudeb Narayan Singh and Ors. v. Shesh Narayan Singh and Ors., wherein it was held that where a valuable right has, during the pendency of the suit, accrued in favour of any of the defendants the suit should not be allowed to be withdrawn. The basis of the decision was A. I. R. 1973 S. C. 643 : R. Ramamurthi Aigar v. Rajeswararao. There can be no dispute that a suit cannot be withdrawn under Order 23, Rule 1, C. P, C, even where no permission is sought for filing a fresh suit in case some right has accrued to the defendant at the time the withdrawal is sought for. The facts of each case would have to be examined to find out whether any right has accrued to the defendant.
4. In A. I. R. 1962 Orissa 86 : Muralidhar Marwari v. Lalit Mohan Sahu and Ors., the principle that the plaintiff has the liberty to withdraw from a suit unconditionally for any reason whatsoever has been accepted. In (1973) CLT 1341 : Rasiklal Rathor v. Smt. Maitrei Sukhla also it has been held that the Court is bound to grant withdrawal when plaintiff withdraws the suit simpliciter without any liberty to institute a fresh suit in respect of the subject matter of such suit. In this case the suit was for recovery of possession and some amount towards arrears for occupation by the defendant. Mr. R. K. Mohapatra, the learned counsel submitted that the right of the defendant for measurement of the land through commissioner has been accoured which would be lost in case the plaintiff is permitted to withdraw the suit. The measurement of the land by the commissioner is only a procedure for determination of the identity of land in dispute. It neither confers nor takes away any right. Hence, the withdrawal cannot be resisted. Mr. Mohapatra, thereafter submitted that the ground for withdrawal is that the suit would not be maintainable In view of coming into force of the Orissa Public Premises (Eviction of Unauthorised Occupants) Act, is not correct in law. In case the said ground is not correct in law plaintiff would suffer since it is precluded from bringing a fresh suit in view of Order 23, Rule 1(4). There can be no doubt that in case a proceeding is initiated before the statutory authority, it shall examine the question of its jurisdiction to entertain a prayer where the same would be agitated before it. It is seen that the trial Court has not considered the question of award of costs to defendant. This amounts to failure of exercise of jurisdiction vested in it. The plaintiff has dragged the defendant No. 1 from 1957 till 1984 to various forums and ultimately sought for withdrawal of the suit. Defendant No. 1 is hence entitled to costs. In the circumstances of the case. I assess the costs at Rs. 500/- (five hundred). The plaintiff shall be liable to pay the defendant No.1 the costs of Rs. 500/- which can be enforced by execution, in case the costs are not paid.
5. In the result, the Civil Revision is allowed to the extent indicated above. No costs.