DESAI, C. J. : This revision is directed against an order passed by a Munsif rejecting an application of Ghufran Ahmad, applicant No. 3 revoking his withdrawal from the suit.

2. The suit was filed in the Court of the learned Munsif by the three applicants; on 5-2-1962 one of them, namely Ghufran Ahmad, made an application stating that he had no dispute left with the defendants opposite parties and praying that his name might be expunged from the array of plaintiffs because he was left with no interest in the subject-matter of the suit. At the time when the application was made, the learned Munsif was away and the application was placed before another Munsif, who ordered it to be laid before the learned Munsif on his return. The application was placed before the learned Munsif on his return and before any orders could be passed on it Ghufran Ahmad filed an affidavit stating that the application had been made by him on account of fraud practised upon him by the opposite parties and that he did not want to withdraw from the suit. The learned Munsif allowed his earlier application holding that once he had withdrawn from the suit he could not resile from the withdrawal and that even if he had withdrawn on account of fraud practised upon him his remedy was by means of another suit. All the three plaintiffs applied for revision of this order of the learned Munsif and the revision came before our brother D.S. Mathur, who on account of conflict among authorities referred the following question to a larger Bench :-

"Can the plaintiff who has already moved an application under sub-r. (1) of O. XXIII, R. 1, C.P.C. withdraw the application for the withdrawal of the suit before orders are passed on the withdrawal application, i.e., the suit is, as far as the plaintiff is concerned, struck off from the file ?"

3. Order XXIII, Rr. 1 and 2 lay down all the laws regarding withdrawal of suits. Rule 1 reads as follows :-

"1. (1) ... the plaintiff may .... .withdraw his suit. . .

(2) Where the Court is satisfied -

(a)…………………………………………………………………………………………………………..

(b) it may. . ... .grant the plaintiff permission to withdraw from such suit with liberty to institute a fresh suit in respect of the subject matter of such suit ......

(3) Where the plaintiff withdraws from a suit . . . without the permission referred to in sub-r. (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting a fresh suit in respect of such subject-matter. . .

(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.'

Rule 2 deals with the period of limitation for a fresh suit instituted on permission granted under R. 1(2).

4. There is no distinction between withdrawing a suit and withdrawing from a suit When there is only one plaintiff and he withdraws the whole suit it can be said that he withdraws the suit; when there are more than one plaintiff and one of them withdraws it maybe better to say that he withdraws from the suit.

"At common law a plaintiff has an absolute right to discontinue or dismiss his suit at any stage of the proceedings prior to verdict or judgment, and this right has been declared to be substantial"; (per C.J.) Taft in the matter of Skinner and Eddy Corporation. (1924) 68 Law Eel 912 at p. 914).

It is this right that has been given statutory recognition through R. 1(1). The right is not fettered by any conditions; it is an absolute right which a plaintiff can exercise at his sweet will at any time before the judgment is delivered. In Allah Baksh v. Niamaf Ali 1892 All WN 53 (1), the Court described the right as "absolute" and capable of being exercised "with out any permission from the Court' Sub rule (4) is a proviso to sub-r (2), which refers to withdrawal with liberty to file a fresh suit which withdrawal only requires, permission of the Court. The plaintiff does not need consent of the defendant of permission or confirmation