ORDER :- This is an application by the plaintiff appellants under Order XXIII, Rule 1, Civil Procedure Code praying that the plaintiffs appellants be permitted to withdraw from the aforesaid suit with liberty to institute a fresh suit in respect of the subject-matter. At the time of arguments, however, the learned counsel pressed his prayer only under sub-rule (1).

2. The suit was filed for an injunction restraining the defendants from interfering with the plaintiff's right in respect of the plots in dispute alleging that the plaintiffs were Bhumidhars. A relief for damages for misappropriation of the fruits of the grove was also claimed. The suit was dismissed by the trial court and the decree was confirmed by the learned Additional Civil Judge. It may also be noted that during the pendency of the second appeal in this Court Mewa Lal, one of the plaintiff appellants, died and his heirs were not brought on record. Baul, respondent No. 2 also died during the pendency of the second appeal and his heirs were also not brought on record. This Court by its order dated 15-11-1971 ordered that the appeal of Mewa Lal abated as against the respondents and the appeal as a whole abated against Baul respondent No. 2.

3. The question for considertion is whether the appellants have a right to withdraw the suit at this stage. Sub-rule (1) of Order XXIII, Rule 1 runs as follows :-

"At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim."

It is contended by the appellants that they have an unfettered and unqualified right to withdraw the suit at any stage and as the appeal is a continuation of the suit that right can be exercised even at the stage of the appeal. Reliance has been placed on Kamta v. Gaya Prasad, 1971 All WR (HC) 667 : (AIR 1972 All 143) wherein a learned Single Judge of this Court laid down that "sub-rule (1) of Rule 1 of Order XXIII, Civil Procedure Code confers an unqualified right on the plaintiff to withdraw the suit at any time. Since an appeal is continuation of the suit, the right of the plaintiff to withdraw from the suit inheres even at the appellate stage. On the language of sub-rule (1) it is difficult to hold that the plaintiff had only a qualified right to withdraw from the suit." The learned Judge relied on the decision of the Supreme Court in M/s. Hulas Rai v. K. B. Bass and Co., AIR 1968 SC 111.

That case related to a suit for rendition of accounts by the Principal against his agent. Issues had been framed in that suit and some evidence had also been recorded, but no preliminary decree for rendition of accounts had been passed when the application under sub-rule (1) of Rule 1 of Order XXIII, Civil Procedure Code was made. It was in this context that the Supreme Court observed that the aforesaid rule gives an unqualified right to the plaintiff to withdraw his suit and that there was no provision in the Code of Civil Procedure which required the court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It appears that the attention of the learned Judge was not invited to the observation made in the subsequent part of the same paragraph where the Supreme Court observed that the stage at which the application for withdrawal of the suit had been made no vested right in favour of the appellant had come into existence and there was no ground for the court to refuse withdrawal of the suit.

This observation clearly indicates that if rights had accrued in favour of a party, there could be no unqualified right in favour of the plaintiff to withdraw the suit. This case cannot be treated as an authority for the proposition that even at the appellate stage when a decree has come into existence in favour of the respondents, the plaintiff continues to have an unqualified right to withdraw the suit. It is unfortunate that the attention of the learned Single Judge was not invited to

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