A plaintiff's withdrawal of a suit is not absolute until a formal order by the court occurs, allowing the right to pursue the suit before dismissal.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner-plaintiff has assailed order dated 19.04.2018, passed by learned Civil Judge, Court No.II, Una, District Una, H.P., in terms whereof, an application filed by defendant No.2 before the learned Trial Court, under Order XXIII, Rule 3 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’), seeking the dismissal of the suit filed by the plaintiff in light of comprise dated 30.09.2016 and the statement of the plaintiff recorded in the Court on 30.09.2016, was allowed.

2. Brief facts necessary for adjudication of this petition are that petitioner-plaintiff filed a suit for declaration, that he was the exclusive owner in possession of the suit property and the impugned alienation effected by defendant No.2 thereof, in favour of defendant No.1, vide registered sale deed dated 27.08.2012, was wrong, illegal, void ab-initio, with further consequential relief of permanent injunction, restraining the defendants from changing the nature and character etc. of the suit property.

3. During the pendency of this suit, on 30.09.2016, an application was filed, under Section 151 of the CPC, with the prayer that the case be taken up on the said date and for the withdrawal of the suit. Though this application is not on record, but copy thereof was made available for the perusal of the Court by learned counsel for the respondents. A perusal of this application demonstrates that the same is dated 30.09.2016 and it was mentioned therein that the case was listed in the Court on 09.12.2016 but as the matter stood amicably settled and the plaintiff was not interested in pursuing the suit and the application be allowed and the suit be taken up during the course of the day and be ordered to be dismissed as withdrawn. Thereafter, statement of the plaintiff was also recorded, by the Court on 30.09.2016, which reads as under:-

“Stated that I do not want to pursue the suit as the matter has been compromised. Suit may kindly be dismissed as withdrawn.”

4. However, thereafter, before formal order of dismissal of the suit on the basis of the application and statement of the plaintiff could have been passed by the learned Trial Court, the plaintiff stated that he did not intend to withdraw the suit and in this backdrop that the application was filed by defendant No.2, for the dismissal of the suit, on the basis of the application filed by the plaintiff to withdraw the same, as well his statement recorded.

5. In terms of the impugned order, learned Trial Court has allowed the application and held that every plaintiff has the right to withdraw the suit unconditionally and withdrawal would be complete, as soon as the plaintiff makes his statement and the withdrawal of the suit is not dependent upon the order of the Court. Learned Trial Court, thereafter, held that in view of the statement of the plaintiff on oath, recorded in the Court on 30.09.2016, the suit was dismissed, having been withdrawn. Learned Trial Court also allowed the application filed by defendant No.2.

6. Learned counsel for the petitioners submitted that the impugned order is per se not sustainable in the eyes of law, for the reason that when the petitioner-plaintiff, before the suit was formally dismissed as withdrawn by the learned Trial Court, expressed his intention to continue with the suit on merit, there was no occasion for the learned Trial Court to have allowed the application, filed by defendant No.2 and dismissed the suit as withdrawn. He submitted that learned Trial Court has erred in not appreciating that till the time, a formal order of withdrawal of the suit was not passed by the Court, the plaintiff had the right in law to pray that the case be decided on merit.

7. On the other hand, learned counsel for the private respondents argued that there is no infirmity in the impugned order. He submitted that as soon as the application was filed by the plaintiff for withdrawal of the suit, the suit stood withdrawn and it w