The plaintiff's right to withdraw a suit under Order 23 Rule 1(1), Code of Civil Procedure, is not absolute and is subject to the condition that no vested rights have accrued in favor of the defendant.

V.K.Jhanji, J.

1. This revision petition is directed against order dated 1.12.1997 of the learned Additional District Judge, Jagadhri, whereby plaintiff (respondent No. 1) has been permitted to withdraw the suit itself against the dismissal of which he had preferred an appeal. As a consequence thereof, appeal has also been allowed to be withdrawn.

2. Plaintiff filed suit for permanent injunction against the petitioner and other nine persons seeking permanent injunction and management of land measuring 56 kanals 5 marlas. The claim of the plaintiff in the said suit was that the suit land is owned and possessed by plaintiff-Masjit and Noordin son of Nathu Ram was appointed its Manager and on his death, Latif son of Fattu being appointed Mutwali Mohtamim-cum-Manager is entitled to manage the affairs of the Masjid and petitioner and other defendants have no right to interfere in his possession and management of the Masjid and the land attached to it. Upon notice of the suit, petitioner as well as other co-defendants appeared and disputed the claim of the plaintiff. The learned trial Court on the pleadings of the parties, framed as many as eight issues and on the basis of voluminous evidence led by the parties, gave a detailed judgment running into almost 18 pages and dismissed the suit. Being aggrieved, plaintiff preferred an appeal before the learned Additional District Judge, Jagadhri. During the pendency of the appeal, plaintiff filed an application to withdraw, the suit and also the appeal. On his application, appeal as well as the suit have been allowed to be withdrawn.

3. Learned counsel appearing on behalf of petitioner has contended that the judgment and decree passed by the trial Court after appraising the evidence led by the parties and hearing the contentions of both the parties, cannot be said to be a mere formality because of dismissal of the suit of the plaintiff, certain rights have accrued in favour of the petitioner and hence, the approach of the learned Additional District Judge in allowing the plaintiff to withdraw the suit itself is patently illegal. In answer to these submissions, learned counsel appearing on behalf of plaintiff has contended that Sub-rule (1) of Rule 1 of Order 23, Code of Civil Procedure, gives absolute right to the plaintiff to withdraw suit at any stage and appeal being continuation of the suit, the Additional District Judge has committed no illegality in allowing the plaintiff to withdraw the suit. Counsel in this regard has cited judgment in Satish Bhardwaj, Advocate v. Dhani Ram and Ors., (1998-2) 119 P.L.R. 73.

4. Sub-rule (1) of Rule 1 of Order 23, Code of Civil Procedure gives absolute right to the plaintiff to withdraw from the suit if no permission to file a fresh suit is sought under Sub-rule (3). The question for consideration is whether that right can be exercised even at the stage of appeal.

5. In Hulas Rai Bail Nath v. Firm K.B. Bass and Co., A.I.R. 1968 S.C. 111, their Lordships of the Supreme Court while opining that there is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it, did not express any view as to whether a Court, is bound to allow withdrawal of a suit to the plaintiff after some vested rights may have accrued in favour of the defendant.

6. In Kanhaiya and Ors. v. Mst Dhaneshwari and Anr., A.I.R. 1973 Allahabad 2, it has been held that a plaintiff has no right under Order 23, Rule 1(1), C.P.C. to withdraw the suit when rights have accrued to the defendants under the decree. Merely because an appeal has been filed, it cannot be said that no rights have vested in or accrued to the defendant under the decree sought to be challenged.

7. In Basudeb Narayan Singh and Ors. v. Shesh Narayan Singh and Ors., A.I.R. 1979 Patna 73, in this very context, a learned Single Judge of the Patna High Court held that plaintiff under Sub-rule (1) of R