1. This revisional application arises out of a suit for partition. The plaintiff claimed to be a co-sharer of several properties and prayed for partition allotment and exclusive possession of the property allotted. The suit was originally valued at Rs. 16,000/- for the purposes of jurisdiction and was also valued at Rs. 15/- for the purposes of court-fees. The plaint was subsequently amended by the introduction of several new items of property of which also the plaintiff claimed partition and on such amendment the suit was valued at Rs. 18,000/-. There was a protracted hearing of the suit. Evidence was adduced for twenty days and argument was heard for another four days. At the close of the argument the plaintiff' found that he could not possibly succeed in the suit and thereupon he applied for withdrawal of the suit with liberty to institute a fresh suit. This application was rejected. The plaintiff moved a further application for withdrawal of the suit. On this application the learned Subordinate Judge made the following order:
'As the plaintiff wants withdrawal of the suit the plaintiff do withdraw the same since withdrawal of the suit amounts to dismissal for non-prosecution. After a protracted trial the plaintiff came with the prayer. Therefore the defendant shall get costs of the suit. Draw up a decree accordingly.' In accordance with the order a formal decree was drawn up which embodied the operative portion of the order.
2. It is to be noticed that the learned Judge completely mis-appreciated the legal implications of withdrawal of a suit under Order 23 Rule 1, Civil P. C. If the plaintiff desires to withdraw his suit and does not want permission to institute a fresh suit he is at liberty to do so. The Court has no discretion in the matter and the plaintiff is entitled to withdraw the suit as a matter of right. The consequences of withdrawal are mentioned in Order 23 Rule 1, Sub-rule 3. The plaintiff withdrawing the suit without the permission of the Court is liable for such costs as the Court may award and is also precluded from instituting any fresh suit in respect of the subject matter of the suit. The withdrawal of the suit does not amount to dismissal of the suit for non-prosecution or to dismissal of the suit at all.
3. The order recording the withdrawal of the suit is not a decree. There was no question there-tore, of drawing the order as a decree. The order recording the withdrawal can however be formally drawn up under Rule 187 Part 1, Chapter 1 of the Civil Rules and Orders, Vol. 1, inasmuch as the order directed payment of costs by the plaintiff to the defendant. We, therefore, treat the so called decree as an order.
4. The formal order awards to the defendant the sum of Rs. 635/- on account of pleaders' fees on Rs. 18,000/-. The plaintiff has taken exception to the award of this sum of Rs. 635/- on account of pleaders' fees. Accordingly he applied to the Court for correction of the decree under Section 152, Civil P. C. His contention was that tile fees should be calculated on the basis of: .
(a) the value of the share claimed by the plaintiff and not the value of the entire estate sought to be partitioned,
(b) On the basis of withdrawal of the suit in accordance with Rules 717 and 718, of the Civil Rules and Orders, Vol. 1.
The learned Subordinate Judge was of the opinion that the order was an order adjudging that the suit stood dismissed for non-prosecution and accordingly the defendant was entitled to costs as if the suit had been dismissed. He did not, however, deal separately with the plaintiff's contention that the fees should be assessed on the basis of the value of the share claimed by the plaintiff. He was of the opinion that the plaintiff ought not to succeed in the application and accordingly dismissed the application.
5. The mode of calculation of fees payable to legal practitioners is regulated by Chapter 28 of the Civil Rules and Orders Vol. 1. These rules have been framed under Section 27, Legal Practitioners' Act which authorises the High Court to fix and regulate the fees payable by any party in respect of the fees of his adversary's lawyers. Chapter 38 contains 23 rules. Rules 717 to 726 and 735 and 736 deal with the mode of calculation of fees in suits. On the facts of the case clearly Rules 719, 722 to 726 have no application.
6. Rule 717 deals with suits for recovery of specific property or a share of specific property whether immovable or movable or for breach of any contract or for damages. In our opinion Rule 717 does not apply to a suit for partition where recovery of possession of the property is not claimed. Recovery of immovable property has a technical meaning. Section 8, Specific Relief Act and the marginal note shows clearly that recovery of specific immovable property means recovery of possession of specific immovable property. Section 16, Civil P. C. shows that recovery of immovable property is different from partition of immovable property. In Bidhata Rai v. Ram Chariter Rai, 12 Cal WN 37 at p. 39 (A) Mookerjee J., observed thus:
'As observed by the learned Judges who decided the case of Ragindro Loll v. Shama Churn 4 Cal LR 417 (B) the effect of a suit for partition is not recovery of possession but to alter the form of enjoyment of joint property by the co-owner.'
7. Rule 718 refers to suits included in Rule 717. Rule 718 provides for cases where such suits are settled, withdrawn, compromised, decided on admission of claim or dismissed for default. Both Rules 717 and 718 cannot apply to this case as this is a suit for partition:
8. Rule 720 applies to all suits not included in Rule 717 where the plaintiff succeeds. In this case the plaintiff has not succeeded and therefore', Rule 720 has no application. Rule 720 however indicates that a suit for partition of joint property is not included in Rule 717. Ordinarily in a suit for partition the plaintiff is not entitled to costs up to the preliminary decree. If the suit for partition is improperly resisted the plaintiff may be awarded costs up to the preliminary decree and accordingly Rule 720 specifically provides for suits for partition of joint property where partition is improperly resisted. The words 'suits for partition of joint property where partition is improperly resisted' does not in any way restrict the generality of the word following viz. ''generally' in all suits not included in Rule 717.
9. Rule 721 applies to a case where the suit is either dismissed upon merits or is decided in favour of the defendant. It is to be noticed that Rules 717 and 720 apply to a case only where the plaintiff succeeds. Rule 718 specifically provides for cases where the suits included in R. 717 are settled, withdrawn, compromised, decided on admission of claim or dismissed for default. There is no specific provision in the rules providing for cases where suits not included in Rule 717 are withdrawn. The Rules however are intended to be exhaustive and to deal with all suits. In this view of the matter we think that the words 'to be decided in favour of the defendant' in R. 721 ought to be given a wide interpretation. In our opinion the word ''decided' means 'disposed of. Where a suit is withdrawn there is no adjudication of the disputes in the suit. The suit is however finally disposed of as a result of the withdrawal. In our opinion, therefore, where the plaintiff withdraws a suit not included in Rule 717 Rule 721 applies and the fees of the defendant's pleader ought to be calculated in accordance with Rule 721.
10. Under Rule 721 the fees are to be calculated; according to the scale in Rule 717 on the whole value of the suit. For the purposes of jurisdiction the value of the suit is the value of the entire property sought to be partitioned and not the value of the share claimed by the plaintiff. Vide Kirty Chum Mitter v. Aunath Nath Deb, ILR 8 Cal 757 (C) and Lala Bhugwat Sahay v. Rai Pashupati Nath Bose 10 Cal WN 564 (D) and Biraj Mohini Dasi v. Chintamoni Dasi, 10 Cal WN 565 (E) and Rajani Kanta Bag v. Raja Bala Dassi : AIR1925Cal320 . We are of the opinion that the words 'on the whole value of the suit' in Rule 721 in a partition suit mean the whole value of the property sought to be partitioned and not merely the value of the share claimed.
11. In this view of the matter the defendant was clearly entitled to payment of the sum of Rs. 635/- on account of pleader's costs.
12. Although the reasons given by the learned Subordinate Judge are erroneous, his conclusion is right and the plaintiff has no ground of complaint in the matter of the award of the fees of the legal practitioner.
13. We therefore pass the following order. The Rule is discharged. Each party will pay and bear its own costs, in this Court.
Guha Ray, J.
14. I agree.