TMI Blog1999 (3) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... had to be impleaded as respondents as required by Order 22 Rule 10 C.P.C. Respondent No.1, it appears, filed an application (C.M.P. No.15941 of 1987) in the High Court for dismissing the suit as not pressed as he had compromised the dispute with Shakunthala and wanted the compromise to be recorded. This application was allowed by the High Court by its judgment dated October 28, 1987 and it is against this judgment that the present appeals have been filed. Mr. K. Parasaran, learned Senior Counsel appearing for the appellants, has contended that the suit which was decreed by the trial court should not have been dismissed as not pressed at the instance of respondent No.1 as he had already transferred the suit properties in favour of the appellants who, being tranferees-pendente-lite were vitally interested in the decree remaining intact. It was further contended that respondent No.1 had been held to be the owner of the property in suit by the trial court and it was after a declaration was granted in his favour that the property was purchased by the appellants. The dismissal of the suit as not pressed at the appellate stage, had the effect of destroying the decree passed in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es a right in favour of the plaintiff to withdraw the suit, at any time, after its institution. Once the suit is withdrawn or any part of the suit is abandoned against all or any of the defendants, unconditionally, the plaintiff cannot bring a fresh suit on the same cause of action unless leave of the Court is obtained as provided by Order 23 Rule 1(3)(b). In other words, a plaintiff cannot while unconditionally abandoning a suit or abandoning a part of his claim, reserve to himself the right to bring a fresh suit on the same cause of action. ( See: Hulas Rai Baij Nath vs. K.P. Bass Co., AIR 1968 SC 111 = 1967 (3) SCR 886). The question in the present case is, however, a little different. If the suit has already been decreed or, for that matter, dismissed and a decree has been passed determining the rights of the parties to the suit, which is under challenge in an appeal, can the decree be destroyed by making an application for dismissing the suit as not pressed or unconditionally withdrawing the suit at the appellate stage. It is this question which is to be decided in this appeal. Every suit, if it is not withdrawn or abandoned, ultimately results in a decree as define ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to have a full trial on merits. There is a consensus of judicial opinion amongst the High Courts on the question before us. We may begin by referring to an old decision of the Bombay High Court in Tukaram Mahadu Tandel vs. Ramchandra Mahadu Tandel Ors., AIR 1925 Bombay 425 in which the Division Bench of that Court observed that though as a general proposition, a plaintiff can, at any time, withdraw a suit but where the parties have entered into a compromise and the defendant has acquired a right under the compromise, it would not be open to the plaintiff who had consented to the compromise, afterwards to annul its effect by withdrawing the suit under Order 23 Rule 1 read with Rule 3 thereof. From Bombay, we may travel to Madras and refer to the decision of that High Court in Dharma Raja vs. K.M. Pethur Raja and others, AIR 1924 Madras 79. In this case, the plaintiff had obtained a decree against the defendants against which only one of the defendants had filed an appeal while the rest of them did not challenge that decree. At the appellate stage, the plaintiff-respondent wanted to withdraw the suit against the appealing defendant so that the decree which had alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existence and not after the decree had come into being. It was observed: It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of the suit of 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 was 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. In the present case, however, a right has become vested in the defendant after the decree in the suit had been passed. Kedar Nath's case (supra) was followed in Kanhaiya and others vs. Mst. Dhaneshwari and another, AIR 1973 Allahabad 212, in which it was again laid down that the plaintiff does not have an unqualified or unfettered right under Order 23 Rule 1(1) C.P.C. to withdraw the suit at the appellate stage when rights have accrued to the respondents under the decree. Both these decisions, namely, the decision of the Allahabad High Court in Kedar Nath's case and Kanhaiya's case were followed by the Andhra Pradesh High Court in Thakur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the benefit of the lower courts' adjudication in their favour. This decision, incidentally, applies squarely to the facts of the present case as in this case also the plaintiff compromised with one of the respondents and gave an application for withdrawal of suit. Obviously, the intention was to deprive the appellants of the benefit which had accrued to them on account of a declaratory decree having been passed in favour of the plaintiff who incidentally was their predecessor-in- interest. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in parties to the suit under the decree cannot be taken away by withdrawal of suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained. The High Court also committed an error in not considering the impact of Rule 1-A which was inserted in Order 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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