A plaintiff does not have an absolute right to withdraw a suit under Order 23, Rule 1, C. P. C. where vested rights have accrued to the defendant.

N. M. KASLIWAL, J.

( 1 ) THIS civil second appeal by the plaintiff is directed against the judgment and decree of learned Additional District Judge No. 6, Jaipur City, Jaipur, dated Dec. 17, 1981 affirming the judgment and decree passed by the learned Munsif (West) Jaipur City, Jaipur dated Jan. 18, 1975 dismissing the suit of the plaintiff.

( 2 ) THE defendant-respondent No. 3 filed a caveat at the stage of admission of the appeal. On 5-3-1982, arguments in the appeal were heard for a considerable long time and no sooner than an order was going to be dictated in the court, learned counsel, for the appellant made an oral request that he may be permitted to withdraw the suit itself. On this, an order was passed that no oral request could be considered at that stage. Learned counsel for the appellant then prayed for granting time to move an application in writing in this regard. The appellant, thereafter, submitted an application on 8-3-82 under Order 23, Rule 1, Sub-rule (1) read with Section 151, C. P. C. with a request that he was no more interested in prosecuting the present appeal as well as the suit and hence wants to withdraw his suit unconditionally. It was, therefore, prayed that this court may be pleased to accept this application for allowing withdrawal of the present appeal as well as the suit itself unconditionally without any reservation.

( 3 ) A reply was submitted by the learned counsel for respondent No. 3 contesting the aforesaid application submitted by the appellant. It was submitted in the reply to the application that the application did not lie within the scope of Order 23, Rule 1, C. P. C. and without admission of appeal itself, no application for withdrawal of suit was maintainable. That after a protracted trial of suit and appeal that is to say after waste of lot of public money and time and after the respondents had been subjected to great strains and expenditures in defending against the suit, the appellant wanted to set at naught the results obtained bv the respondent and concurrent findings given on material issues by two courts below. The application was in the nature of abuse of process of the court and law. That the suit did not suffer from any formal defect nor was it claimed that there was any such ground where the withdrawal could be claimed with justification. The main controversy in the suit was whether the plaintiff appellant had been given on lease the disputed piece of land by the U. I. T. The defendant respondent claimed that the same had been sold along with some other land to him i. e. Shri Ashwini Sethi son of Shri O. P. Sethi The respondent wanted to enclose the land and some other part contiguous to it by raising compound wall. The plaintiff created obstruction unauthorisedly and filed the suit. He succeeded for as much as 17 years in preventing the defendant-respondent from making the rightful use of his land by obtaining the injunctions during the pendency of appeal and suit. The findings given by the two courts below have negatived in clear terms, the alleged right of the plaintiff. The findings, therefore, were in the nature of the respondents right having been determined favourably for him. The accrued rights, therefore, should not be allowed to be taken away by the appellant under the garb of the present prayer of withdrawal of the suit.

( 4 ) LEARNED counsel for the parties were, therefore, heard at length on the application filed under Order 23, Rule 1 Sub-rule (1), C. P. C.

( 5 ) IT was contended by the learned counsel for the appellant that there was a distinction between applications filed under Order 23, Rule I, Sub-rule (1) and Sub-rule (2), In a case where the plaintiff did not make a prayer for withdrawing the suit with liberty to institute a fresh suit in respect of the subject matter of such suit and kept no reservation, the plaintiff had an absolute right under Sub-rule (1) of Rule 1 of Order 23 to withdraw from his suit and such permission cannot be r