The withdrawal of a suit under Order 23 Rule 1, Civil P. C. is a matter of right and does not amount to dismissal for non-prosecution. In a partition suit, the fees of the defendant's pleader in a case where the suit is withdrawn should be calculated in accordance with Rule 721 of the Civil Rules and Orders, Vol. 1, Chapter 28, on the whole value of the property sought to be partitioned and not merely the value of the share claimed.

( 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