A plaintiff is not entitled to withdraw a suit as a matter of course after the decree is passed by the trial court.

1. This appeal is directed against the order of the Additional District Judge. Sangrur, dated 25-10-1982, whereby the plaintiff was allowed to withdraw the suit, after setting aside the judgment and decree of the trial Court, dismissing his suit.

2. The plaintiff-respondent who is a tenant under the defendants filed the suit for declaration and permanent injunction, alleging that he had taken the house in dispute on rent seven years back from the defendants and had been paying rent regularly and the rent up to November, 1979 had been paid by him, but the landlords never issued any receipt in this respect. Since the defendants were threatening to dispossess him forcibly, on the ground of non-payment of rent, he filed the suit for declaration to the effect that he had already paid rent up to 30-11-1979 and thus prayed for a decree for permanent injunction, restraining the defendants from dispossessing him forcibly from the suit property. However, the suit was contested on behalf of the defendants. Ultimately, the trial Court found that the rent at the rate of Rs. 80.00 per mensem up to 31-8-1974 only had been paid by the plaintiff. and thereafter the rent had not been paid, as alleged in the plaint. Consequently, plaintiff s suit was dismissed. In appeal filed on behalf of the plaintiff, an application under O.23, Rule 1 of the Code of Civil Procedure was filed wherein it was prayed that he be allowed to withdraw the suit. That application was resisted on behalf of the defendants, on the ground that there was no sufficient reason for withdrawing the suit, and the application was filed by the plaintiff simply to avoid decision which has been given in favour of the defendants by the learned trial Court. However, the learned lower Appellate Court found that as the defendants could not be said to have acquired any right under the decree and the withdrawal of the suit would not adversely affect the substantive rights of the defendants the plaintiff was entitled to withdraw the same. Consequently, the application was allowed. The judgment and decree of the trial Court were set aside and the plaintiff s suit was dismissed as withdrawn. Dissatisfied with the same, the defendants have filed the second appeal in this Court.

3. The learned counsel for the appellants contended that the plaintiff could not be allowed to withdraw the suit in appeal, because a categoric finding has been given by the trial Court that he had failed to prove that he had paid rent up to 30-11-1979, According to the learned counsel, this finding is very material as the defendants have already filed an application for ejectment against the plaintiff before the Rent Controller. On the other hand, the learned counsel for the respondent contended that the appeal is a continuation of the suit and, therefore, in view of the provisions of Order 23, Rule 1 of the Code, the plaintiff was entitled to withdraw the suit at any time. On behalf of the appellants reliance was placed on Kanhaiya V/s. Mst. Dhaneshwari, AIR 1973 All. 212.

4. After hearing the learned counsel for the parties, I am of the considered view that the lower Appellate Court had acted illegally in allowing the plaintiff to withdraw the suit after setting aside the judgment and decree of the trial Court dismissing the suit. The words "at any time" in Rule 1 of Order 23 of the Code would apply to the suit pending in the trial Court. Once the decree is passed by the trial Court, then certain rights are vested in the party in whose favour the suit is decided, Thus, the plaintiff is not entitled to withdraw the suit, as a matter of course. at any time after the decree is passed by the trial Court. The judgment relied upon by the learned counsel for the respondent, Kamta V/s. Gaya Prasad, (AIR 1972 All 143) was dissented subsequently by that Court in Kanhaiya s (supra). In paragraph 6 thereof, it was observed as under:-

"A learned single Judge of this Court in Kedar Nath V/s. Chandra Kiran, AIR 1962 All 26