Appellate Court has jurisdiction to permit withdrawal of suit with liberty to file fresh suit and findings recorded by trial Court in previous suit would not operate as res judicata in subsequent suit.

, J.

1. This judgment shall dispose of Civil Revision No.23 of 1990, as well.

2. Plaintiff-respondent filed a suit in the year 1974 and the same was dismissed by the trial Court on 16 2-1979. Plaintiff respondent preferred an appeal against that order and the defendant-petitioners filed cross-objections, On 9-9-1981 plaintiff respondents on the basis of an application obtained permission of the appellate Court to withdraw the suit with permission to file a fresh suit on the same cause of auction. Statements of both the counsel for the parties and the order recorded by the District Judge, Rohtak are reproduced below:statement of plaintiffs counsel: "the suit of which this appeal has arisen suffers from formal defect I may be allowed to withdraw with liberty to bring a fresh one on the same cause of action. The appeal thus consequently renders infractuous and may kindly be dismissed as such leaving the parties to bear their own costs. " Statement of counsel opposite : "the appeal filed by the defendant-respondent readers in- frustuous and may kindly be dismissed leaving the parties to bear their own costs. " Order passed by District Jugde : "plaint of Civil suit No.420, decided on 16-2-1979 is full of formal defects. The plaintiff is therefore, allowed to withdraw the suit with liberty to file a fresh one on the same cause of action on payment of Rs.100/ as additional costs Civil Appeals No.85/53 filed on 23-4-1979 and 94/13 filed on 16-4-1974 by the rival parties against the judgment and decree dated 16-2-1979 of the trial Court are rendered infrucruous and are, therefore, dismissed as such. Beth the parties shall bear their own costs of both these appeals. " 3 After withdrawal of the said suit, plaintiff respondent filed a fresh suit on the same cause of action. An application was filed by the defendant petitioners in the trial Court that the order of the appellate Court dated 9-9-1981, referred to above, was without jurisdiction as the same did not set aside the decree of the trial Court dated 16-2 1979 and therfore, permission to file a fresh suit on the same cause of action could not be granted under Rule 1 of Order 23 of the Code of Civil Procedure (hereinafter referred to as the Code) and further that judgment and decree dated 16-2-1979 passed by tie trial Court in the previous suit would operate as res judicata in the present suit Plaintiff respondent contested the application and controvrted the pleas taken by the defeadant petitioners in that application. Trial Court dismissed the application with costs and defendants have come in revision to this Court against the said order of the trial Court.4. Learned counsel appearing for the petitioners has raised two arguments namely; (i) order of the appellate Court dated 9-9-1981 in the previous suit granting permission to withdraw the suit with liberty to file a fresh one on the same cause of action was illegal and without jurisdiction and, therefore, second suit on the same cause of action could not be filed and (ii) findings recorded by the trial Court in the earlier judgment dated 16 2-1979 in the previous suit operate as res judicata in the present suit and hence the second suit on the same cause of action was not maintainable. I find no substance in either of the submissions of the learned counsel for the petitioners. My reasons for the same are as under :taking the first plea first, the main thrust of the argument of learned counsel appearing for the petitioners is that Rule 1 of Order 23 of the Code of Civil Procedure (hereinafter referred to as the Code) applies to the suits pending before the trial Court only and the appellate Court has no jurisdiction to permit the withdrawal of the suit with permission to file a second suit on the same cause of action. He has further argued that once a decree is passed by the trial Court then certain rights come to vest in the party in whose favour the decree has been passed and as such the appellate Court has no jurisdicti