DWARKA PRASAD, J.—In this appeal learned counsel for the appellant submits that Banarsi Das, appellant has expired but his legal representatives have not been brought on record and his name may be struck of from the record. However, this appeal can be maintained on behalf of his wife Smt Premvati who is the other appellant and was one of the claimants in the original Court,

2. Subodh Chandra, who was the son of Banarsi Das and Smt. Premvati, met with an accident on June 21, 1969 at about 7.00 P. M. while he was going on his scooter was struck by truck No. RJW 771 belonging to Mohammed Shafi and which was being driven by that time by Goverdhan. As a result of the aforesaid accident, Subodh Chandra died and a claim petition was filed by his parents Banarsi Das and Smt. Premvati, against the driver, owner and insurer of the motor vehicle No. RJW 771 on the ground that the said truck was being driven at the relevant time by Goverdhan in a rash and negligent manner. The Motor Accident Claims Tribunal, Jodhpur by its order dated October 30, 1971 dismissed the claim petition on the ground that the claimants failed to establish that the death of Subodh Chandra was caused on account of rash and negligent driving of the truck by Goverdhan.

3. In this appeal, the appellants submitted that the fact that Goverdhan was driving the truck in question rashly and negligently at the time when the said truck against the scooter driven by Subodh Chandra is fully proved by the evidence on record and the trial court erred in dismissing the claim petition.

4. During in pendency of the appeal, the appellants and respondents Mohd. Shafi and Goverdhan arrived at a compromise and a compromise was filed on September 12, 1973 by the learned counsel for the appellants. According to the aforesaid compromise petition, Mohd. Shafi and Goverdhan respondents have compensated the appellants to their satisfaction by a separate agreement and receipt and so the appellants did not desire to proceed against respondents Mohd. Shafi and Goverdhan and it was prayed that the appeal may be dismissed, so far as respondents Mohd. Shafi and Goverdhan were concerned. The appellants, however, stated that they desired to proceed against the Insurance Company, respondent No. 2.

5. Learned counsel for the appellants submit that a compromise was entered into by the appellants under an erroneous impression created by some judgments, which laid down that so far as the liability of the Insurance Company was concerned, proof of negligence on the part of the person driving the vehicle by which the accident had been caused was not necessary. The application filed by the parties did not mention the aforesaid reason for entering into the compromise but the reason which was specifically mentioned in the compromise petition was that the respondents Mohammed Shafi and Goverdhan had "compensated" the appellants "to their satisfaction." If the appellants were satisfied with the compensation which they received from the two respondents Mohd. Shafi and Goverdhan and on that basis prayed for the withdrawal or abandonment of the claim against the said respondents, the provisions of Order 23 Rule 1 C. P. C. permitted the appellants to withdraw the appeal against the two respondents Mohammed Shafi and Goverdhan by abandonment of their claims or part thereof, so far as the said two respondents were concerned.

6. Order 23 Rule 1 C.P.C authorises any plaintiff to withdraw his suit or abandon his claim or a part thereof, at any time after the institution of suit, and no order of the court is required for such withdrawal to abandonment. The order of the court merely recognises or takes notice of the fact of such withdrawal or abandonment. Thus, the very filing of the compromise petition dated Sept 12, 1973 by the appellants constituted abandonment or withdrawal of their claim so far as respondents Mohd. Shafi and Goverdhan were concerned. It may also be noted here that the appellants admitted in the aforesaid

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