A strong case must be made out for allowing the suit to be withdrawn at the appellate stage, and the suit may be allowed to be withdrawn even at the appellate stage in a given case.

1. This petition is directed against the order of the Additional District Judge, Jullundur, dated 29th November, 1984, whereby an application under O.23, R.1, Code of Civil Procedure, for permission to withdraw the suit and file a fresh one was dismissed in appeal.

2. The suit of the plaintiff Gurnek Singh (petitioner) for declaration and a permanent injunction restraining defendant No.1 from alienating the ancestral property without legal necessity was dismissed by the trial Court vide judgment dated 5th January, 1984. Dissatisfied with the same, the plaintiff filed an appeal. During the pendency of the appeal he moved an application under O.23, R.1, C.P.C, for permission to withdraw the suit alleging that the same is liable to fail on account of some formal defects in the form of the suit. This application was opposed on behalf of the defendant respondents on the ground that no permission can be granted to the plaintiff to withdraw the suit as it has been found by the trial Court that the suit land was not the ancestral property. Since the suit was not dismissed on the ground of any formal defect but on merits, the application deserves to be dismissed, it was pleaded. The learned Additional District Judge relying on the judgment of this Court reported as Jubedan Begum V/s. Sekhawat All Khan, AIR 1984 Punj and Har 221 dismissed the application holding that the plaintiff Harnek Singh was not entitled to withdraw the suit in appeal.

3. Learned counsel for the plaintiff-petitioner submitted that this Court in Jubedan Begum s case (supra) relied on the Allahabad High Court judgment reported as Kanhaiya V/s. Mst. Dhaneshwari, AIR 1973 All 212, which judgment, according to the learned counsel, was later on distinguished by the Allahabad High Court itself in Suraj Pal Singh V/s. Sri Gharam Singh, AIR 1973 All 466. He also referred to Ram Dhan V/s. Jagat Prasad Sethi, AIR 1982 Raj 235, Bijayananda Patnaik V/s. Satrughna Sahu, AIR 1963 SC 1566 and Ravaneshwar Prasad Singh V/s. Baijnath Ram Goenka, AIR 1915 PC 24, to contend that there was no bar for allowing the suit to be withdrawn under O.23, R.1, C.P.C., in appeal.

4. After hearing the learned counsel for the parties and going through the case law cited at the Bar I do not find any merit in this petition. In Jubedan Begum s case (supra) what was held by this Court was that the plaintiff was not entitled to withdraw the suit, as a matter of course, at any time after the decree is passed by the trial Court. In other words, it means that a very strong case has to be made out for allowing the suit to be withdrawn at the appellate stage. As a proposition of law, it could not be disputed that in a given case the suit may be allowed to be withdrawn even at the appellate stage. No such case has been made out as regards the facts of the present case. The suit was dismissed on merits and not on account of any formal defect in it, in the present case. One of the issues in the suit was whether the suit was bad for a mere declaration. The trial Court found this issue against the plaintiff. During the trial, the plaintiff never sought amendment of his plaint so as to claim the relief of possession as well. In any case, the suit was ultimately dismissed on merits as it was held that the suit property was not the ancestral property of the plaintiff and defendant No.1, as claimed in the plaint. In these circumstances no case has been made out by the plaintiff to withdraw the suit at the appellate stage. Consequently, the petition fails and is dismissed with costs.

5. The parties, through counsel, are directed to appear in the Court of the Additional District Judge, Jullundur, on December 20, 1985.