SANJAY KISHAN KAUL, J.

( 1 ) THE plaintiff was the absolute owner of the property bearing no. F-18 geetanjali Enclave, New Delhi pursuant to a perpetual sub lease dated 16. 12. 1970. The present suit for was filed by the plaintiff seeking a permanent and mandatory injunction against the defendants to restrain them from entering the suit property and to direct defendant no. 1 to permanently quit the suit property.

( 2 ) DEFENDANT no. 2 is the son of the plaintiff and defendant no. 1 is her daughter in law and the present suit is a result of souring of relations between the plaintiff and her daughter in law. The dispute is really one between the plaintiff and defendant no. 1.

( 3 ) ISSUES in the suit were framed on 06. 03. 2007 and the matter was set down for trial. Defendant no. 1 was restrained from entering the suit property by an ad interim order dated 05. 12. 2006 and the application for setting aside the same was dismissed on 10. 01. 2007. An appeal was filed against the said order which was disposed of by a division bench of this court on 19. 03. 2007 with the direction to appear before this court to pursue the suit in accordance with law as the counsel for respondent no. 1 (plaintiff herein) stated that the suit property had been sold and the appeal had thus become infructuous. The suit property is stated to have been sold vide a sale deed executed and registered in favour of the purchaser on 11. 03. 2007.

( 4 ) ON 16. 04. 2007, learned counsel for the plaintiff stated that he has obtained instructions to unconditionally withdraw the present suit. Learned senior counsel for defendant no. 1 however had objections to the same. I heard learned counsels for the parties on 20. 04. 2007 and 03. 05. 2007.

( 5 ) THE basic plea of the plaintiff is that a plaintiff has an unconditional right to withdraw a suit under the provisions of Order 23 Rule 1 (1) of the Code of civil Procedure 1908 (hereinafter referred to as the said code) and cannot be compelled at the instance of the defendant to continue with the suit. Defendant no. 1 on the other hand has taken the stand that she has a right of possession by virtue of the factum of possession as well as by reason of her right of possession being implicit in the right to maintenance and thus the plaintiff cannot be considered wholly dominus litis and permitted to withdraw the suit.

( 6 ) LEARNED senior counsel for the plaintiff submitted that well prior to the commencement of the litigation, the plaintiff had definite plans to sell the property in question and purchase smaller residential accommodation. This fact was brought to the notice of the court at the very outset. In this regard, learned counsel drew the attention of the court to para 17 of the plaint wherein it has been stated that the plaintiff has definite plans to sell the property and take a smaller apartment and keep the proceeds for meeting her old age needs and security.

( 7 ) LEARNED senior counsel averred that defendant no. 1 had forcibly entered the house and occupied one room therein and thereafter filed a suit seeking an injunction against the plaintiff claiming protection of her right to residence in the matrimonial home under inter alia the Protection of Women from Domestic violence Act, 2005 (for short the "pwdv Act" ). It is submitted that no interim relief was obtained in that suit and the suit itself has been dismissed in default.

( 8 ) LEARNED senior counsel for the plaintiff contended that under the provisions of sub rule (1) of Rule 1 of Order 23 of the said code, a plaintiff has an absolute right of withdrawal or abandonment and cannot be compelled to proceed with the suit at the instance of defendant no. 1 who contends that she may be able to establish a personal right arising out of her status as a wife particularly because she has abandoned her independent suit to claim the rights asserted.

( 9 ) IN support of his plea learned senior counsel placed reliance on the judgement of a learned single j