The plaintiff's right to withdraw the suit at the appellate stage is not absolute and is subject to the condition of showing a very strong case where no prejudice is caused to the defendants.

JUDGMENT

Raj Mohan Singh, J. - Petitioner has challenged the order dated 22.11.2018 passed by Additional District Judge, Patiala vide which the application filed by the petitioner under Order XXIII, Rule 1(3) read with section 151 CPC for withdrawal of the suit at the appellate stage was dismissed.

2. Perusal of the record would show that plaintiff/petitioner filed a suit for permanent injunction, restraining the defendants from alienating, mortgaging or creating any charge over the suit property.

3. The suit was dismissed vide judgment and decree dated 27.02.2015 passed by Civil Judge (Junior Division), Patiala. Thereafter, appeal was filed before the Lower Appellate Court and an application was filed under Order XXIII, Rule 1(3) read with section 151 CPC for seeking leave of the Court to withdraw the original suit with a liberty to institute fresh suit on the same cause of action.

4. The said application was dismissed by the Lower Appellate Court vide the impugned order. That is how, the present revision petition came to be filed.

5. I have heard learned counsel for the petitioner.

6. Learned counsel for the petitioner relied upon M/s Manohar Cold Storage and Ice Factory vs. Baldev Singh, (2010) 3 RCR (Civil) 388 and contended that appeal is a continuation of suit, therefore, provisions in terms of Order XXIII CPC can be resorted to at this stage. Appellate Court can allow the plaintiff to withdraw the suit, if the same was dismissed purely on a formal defect.

7. Perusal of the judgment and decree dated 27.02.2015 would show that trial Court framed as many as 5 issues. Issue No.1 was to the following effect:-

1. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP

8. Since the suit was filed on the basis of agreement to sell, therefore, trial Court considered the provisions in terms of sections 38(2) and 41 of the Specific Relief Act and decided issue No.1 against the plaintiff. Issues No.2, 3 and 4 were decided against the defendants as no evidence was led by the defendants to prove the aforesaid issues. Resultantly, the suit was dismissed on merits with costs.

9. In Baru Ram vs. Baldeva, 1994 PLJ 144 , the controversy was considered by the Court at the threshold of Order XXIII, Rule 1 CPC and prayer was declined. The provisions in terms of Order XXIII, Rule 1(3) CPC cannot be allowed to be utilized by the plaintiff who was negligent throughout. The suit for permanent injunction was filed on the basis of agreement to sell. The object of Order XXIII, Rule 1(3) CPC is to permit the plaintiff to have a fair trial on merits in case where defect is merely a technical defect and the same can be rectified only by a de-novo trial, but in case the plaintiff wants to avoid his previous negligent conduct and the defect has occurred due to plaintiff's own fault resulting in passing of decree against him, the withdrawal of suit with a liberty to file fresh suit at appellate stage cannot be allowed as in such eventuality, the defendants would be deprived of their legal defence in terms of Order II, Rule 2 CPC in the event of filing fresh suit by the plaintiff. It has to be presumed that the plaintiff was aware of the defect and still proceeded to fight it out. In such circumstances, Order XXIII Rules 1 and 2 CPC cannot be resorted to. Reference can be made to Piar Ram and another vs. Ganesh Dass and others, AIR 1967, Punjab and Haryana 237 .

10. It is a settled principle of law that once a decree is passed by the trial Court and the same is challenged in appeal, it would not be open to the plaintiff to withdraw the suit so as to destroy the decree and rights which have come to be vested in the defendant(s) to the suit unless a very strong case is shown that it would not affect or prejudice anybody's vested rights. The ratio as laid down in R. Rathinavel Chettiar vs. V. Sivaraman, (1999) 2 RCR (Civil) 447 can be relied in the aforesaid proposition.

11. Plaintiff does not have any unqualified or unfettered