TMI Blog1967 (5) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... the principal and appellant as the agent had not been settled since the dealings be-an in the year 1941 onwards. Tentatively, a sum of ₹ 2,100/- was claimed in the plaint. In the written statement filed on behalf of the appellant, the suit was contested on various grounds; but for the purposes of this appeal, we need mention the pleas taken in only two paragraphs 8 and I 1. In paragraph 8, it was pleaded that one Lala Shiva Charan, a partner of the respondent firm, had come with a Munim in the month of Agahan last and account.,; were fully explained to him as worked out upto Kartik Sudi 15. Sambat 2007. In that statement of account, a sum of ₹ 10,677-14-3 was found due to the appellant from the respondent and the representatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound taken for contesting this application for withdrawal was that, in a suit of this nature, it is permissible to pass a decree in favour of the defendant if, on accounting, something is found due to him against the plaintiff, and it followed that, if the defendant paid court-fee on 'the amount which was found due to him from the plaintiff, his position became that of ,A plaintiff himself and he became entitled to have 'the accounting done and to obtain a decree. It was urged that the plaintiff's game in withdrawing the suit after protracted duration and considerable expenditure on the part of the defendant was to defeat this right of the defendant. The trial Court held that the right of the plaintiff in this suit to withdraw u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such circumstances and to compel tile plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under 0. 8 C.P.C., or a counterclaim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. In the present case. the pleadings in paragraphs 8 and II of the written statement. mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counterclaim, because no provision is shown under which a counter-claim could have been filed in the trial Court in such a. suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her a Court is bound to allow withdrawal of a suit to a plaintiff after some vested right may have accrued in the suit in favour of the defendant. On the facts of this case. it is clear that the right of the plaintiff to withdraw the suit not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly justified. On behalf of the appellant, reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi v. Meyappa Chettiar and Others (1), where the Court held: Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of theclaim by the plaintiff, it will simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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