A plaintiff has an unqualified right to withdraw or abandon a suit under Order 23 Rule 1 Sub-Rule (1) of the Code of Civil Procedure, but if the withdrawal is subject to conditions, the court may allow the withdrawal to be revoked.

( 1 ) A very short and interesting point has been raised in this Revision Petition, namely once the suit has been withdrawn by the plaintiff, can he revoke that withdrawal ?

( 2 ) THIS was the only point raised in this Revision Petition. There are no much facts involved in this case. The short and brief facts are that respondent herein filed a suit against the petitioner who happens to be his son. Summons of the suit were served on the petitioner on 8-1-1993 and he was required So appear in Court on 11-1-1993. On 10-1-1993, respondent herein met the petitioner according to the allegation and agreed to withdraw the suit against the petitioner. He made the following endorsement on 10-1-1993 on the summon issued by the Cour: to the defendant:

"i am withdrawing my above case against my son Bharat Bhushan Gupta which is pending in the Court of Shri Shiv Charan, Magistrate. Other legal formalities would be done by my Advocate,"

( 3 ) SUB rule (1) of Rule I of Order 23, Code of Civil Procedure. gives unqualified right to a plaintiff to withdraw or abandon a suit. Admittedly the Rules does not requi. re any order in the case of withdrawal. No leave or order is necessary. The permission of the Court is necessary only when the plaintiff wants to file a fresh suit in respect of the same cause of action. Plaintiff can also withdraw his suit with liberty to bring a fresh suit. But the question is. if the withdrawal is not before the court or with the leave of the Court, but is done by making an endorsement on the summons, can he come to the Court and state that he wants to revoke that withdrawal ? Mr. V. B. . Andley, appearing for the petitioner, contended that the words "at any time" in sub rule (1) means at any stage after the institution of the suit and before its disposal. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit. or part of the claim. The language of sub rule (1) affirms the unqualified right of the plaintiff to withdraw or abandon) a suit. There is no provision in the Code which requires the court to refuse permission to withdraw a suit or to compel a plaintiff to proceed with his suit. This is so because withdrawal of the suit under sub rule (1) is complete as soon as it takes place and in an" case when the court is informed of it. That being so there is no question of a right to revoke such withdrawal. No order is necessary to effectuate it.

( 4 ) SO far as the legal position is concerned there is no quarrel with the same. But each fact ha- to be weighed on its merits. In the present case, on the summon the plaintiff had mentioned that he was withdrawing his case, against his son, pending in the Court. Other legal formalities were to be done by his lawyer. The language of the endorsement shows that the plaintiff had not exercised the unqualified right to withdraw the suit. In fact the very reading of this endoresement shows that the legal formalities were to be done by his advocate, meaning thereby the the lawyer was to move an application in this regard in the Court. If can be termed as a conditional withdrawal. The lawyer never moved an application in the Court for withdrawing the suit. The plaintiff had reserved the right which he never exercised before the Court. Therefore there was no question for the Court to apply its mind. The question arises, what could be he other formalities. Mr. Andley stated that it was simply to inform the Court that the suit has been withdrawn. This condition can be interpreted in other. way also that the plaintiff had to give instruction to his lawyer to move an application in the Court incorporating the terms and conditions of his withdrawl. If he was to simply withdrawl the suit he would not have left the formalities to be completed by his lawyer. This shows :that it was not a withdrawal without impediments. An. application for withdrawal without prejudice to lawful rights and remedy is not enough. May