The main legal point established in the judgment is the unqualified right of the plaintiff to withdraw the suit under Order 23, Rule 1, CPC, and the importance of adjudication on merits in determining the impact of withdrawal on the rights and findings of the trial court.

R.L. Anand, J. - This is a civil revision filed by Pargat Singh and has been directed against the order dated 23.9.1999 passed by the Addl. Distt. Judge, Fatehgarh Sahib, who allowed the application of the plaintiff-appellant under Order 23, Rule 1, CPC, and granted him the permission to withdraw the suit unconditionally mainly on the ground that the appeal is in continuation of the original proceedings.

2. Some facts, in brief, can be noticed in the following manner :-

3. Nachhattar Singh, plaintiff, filed a suit against Pargat Singh and Daroga Singh for the declaration to the effect that he is the owner and in possession of the land mentioned in the head note of the plaint and that the defendants have no connection with the suit land and the decree passed in suit No. 724 of 22.10.1977 decided on 22.10.1977 obtained by the defendants against the plaintiff is result of fraud and is not binding upon the plaintiff and is nullity and is null and void. The plaintiff also prayed for permanent injunction restraining the defendants from interfering in his possession over the land in question.

4. The suit was contested by the defendants. According to the defendants, they paid money as per their shares to the plaintiff and purchased the property in question. The decree dated 22.10.1977 is perfectly legal and no fraud or misrepresentation has been played upon the plaintiff. The defendants also took the objection that the suit of the plaintiff is barred under Section 11 of the CPC. Similar suit No. 147 of 4.5.1981, which was between the parties and with regard to the same property, was dismissed on 11.12.1982 by the Sub Judge 1st Class, Fatehgarh Sahib. The suit is also barred by time. With these broad defences, the defendants prayed for the dismissal of the suit.

5. From the pleadings of the parties, the trial court framed the following issues :-

"1. Whether the decree in suit No. 724 dated 22.10.1977 decided on 22.10.1977 is illegal null and void ? OPP

2. Whether the plaintiff entitled to declaration and injunction as prayed for ? OPP

3. Whether the suit is barred under Section 11 CPC ? OPD

3A. Whether there was compromise between the parties on 3.11.1986 ? If so, to what effect ? OPA

3B. Whether the suit is barred and not maintainable as pleaded in para 16 of the written statement ?

4. Relief."

6. The parties led evidence in support of their case and, finally, issue No. 1 was decided against the plaintiff and in favour of the defendants and decree dated 22.10.1977 was held to be valid. Issues No. 3, 3A and 3B were also decided against the plaintiff and in favour of the defendants. Resultantly, vide judgment and decree dated 11.2.1993, the suit of the plaintiff was dismissed.

7. Aggrieved by the judgment and decree, the plaintiff filed an appeal before the court of the Addl. Distt. Judge, Fatehgarh Sahib and during the pendency of the appeal an application under Order 23, Rule 1, CPC, was filed by the plaintiff. This application was contested by the respondents (now petitioners) on the ground that in case the suit and the appeal are allowed to be withdrawn, then, Nachhattar Singh should be burdened with heavy costs as the defendants had been harassed for the last 12 years. The learned Addl. Distt. Judge, Fatehgarh Sahib, allowed the said application for the reasons, which read as under :-

"After hearing the learned counsel for the parties, and having perused the records of the case and the authority cited by the counsel for the appellants, I am of the opinion that permission to withdraw the suit has to be granted to the plaintiffs in terms of the Order 23 Rule 1 CPC. As per the provisions of Order 23 Rule 1 CPC give an unqualified right to the plaintiff to withdraw the suit filed by him.

Accordingly, I allow the application and permit the plaintiff to withdraw the suit. Consequently, the suit is hereby dismissed as withdrawn. Since the appeal is in continuation of the original proceedings, therefore, the judgment passed by the trial c