A plaintiff or an applicant continues to have a locus penitential until his petition has been acted upon by the Court, and he can withdraw his petition at any time before the Court passes an order on that application.

H. L. AGRAWAL, C. J.

( 1 ) IN this writ application, the question which arises for consideration is as to whether an application for withdrawal of a suit itself can be withdrawn by the applicant.

( 2 ) THE matter arises out of a house rent case. The petitioner is the tenant. Opposite Parties 1 and 2 had filed a case for eviction of the petitioner under S. 7, Orissa House Rent Control Act, 1967, in the Court of the House Rent Controller, Jajpur, after having purchased the house from Khetrabasi Samant on 19-3-1984. Petitioner, after appearing in the proceeding, made an application for a direction to opposite parties 1 and 2 to produce the sale deed so as to enable him to take a proper defence. The Controller by his order dated 17-9-1986 rejected the prayer on certain reasons which are not relevant to be gone into. Against that order, the petitioner filed O. J. C. No. 2674 of 1986 in this Court for a direction to the landlords for production of the sale deed. In that case, in the counter affidavit the opposite parties stated that they had since already filed the document in the proceeding. In that view of the matter the writ application was disposed of by order dated 9-12-1986 with a direction to the petitioner to file written statement within three weeks.

( 3 ) DURING the pendency of the said writ application, on 27-10-1986 an application was filed by the landlords before the Controller for withdrawal of their case. The stand of the petitioner is that on that account there was no necessity to file any written statement as directed by this Court. On 2-1-1987, however, the landlords filed another application before the Controller stating that they do not want to pursue the application dated 27-10-1986 for withdrawal of the proceeding and the Controller by the impugned order dated 3-1-1987 (Annexure-1) allowed the proceeding to continue in spite of objections of the petitioner. The present writ application has, therefore, been filed by the petitioner-tenant. It has been stated that on the facts and circumstances mentioned above, the Controller was not justified in allowing the proceeding to continue any more in view of the withdrawal application of opposite parties 1 and 2.

( 4 ) IT is submitted by the learned counsel for the petitioner that under the scheme of O. 23, R. 1, Civil P. C. once an application is made by a plaintiff to abandon his suit, it becomes effective as soon as it is done. He placed strong reliance upon the case of Smt. Raisa Sultana Begam v. Abdul Qadir, AIR 1966 All 318. There, no doubt, a view in favour of the petitioner has been taken. It has been held :-"since withdrawing a suit is a unilateral act to be done by the plaintiff, it requires no permission or order of the Court and is not subject to any condition; it becomes effective as soon as it is done just as a compromise does. Any information of it given to the Court is no part of it, so also any order passed by the Court on receiving the information. "on reference to several cases, the Allahabad High Court took the view that right to withdraw having been expressly conferred by R. 1 (1 ). and there being no provision conferring the right to revoke the withdrawal, there is no justification for saying that the right to withdraw includes in itself a right to revoke the withdrawal. The only situation in which this withdrawal is permissible according to this case is when the application 'in fact' was vitiated by something like a fraud practiced upon the party, as in that event, the suit was never withdrawn at all.

( 5 ) SIMILAR view has also been taken by a learned Judge of the Delhi High Court in the case of Curwell (India) Ltd. v. Sahib Singh, AIR 1983 NOC 78, where, on reference to the case of Shiv Prasad v. Durga Prasad, AIR 1975 SC 957 it has been observed that an act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the appeal.

( 6 ) IT, therefore, becomes necessary to refer to the Supreme Court case. That was