The plaintiff has an absolute right to withdraw the suit before judgment as per Order XXIII, Rule 1, C.P.C., but the appellate court has discretion in allowing withdrawal in the case of a suit already decreed and a pending appeal.

M. Katju and K. N. Ojha, JJ.—This first appeal has been filed against the impugned judgment of the Civil Judge (Senior Division), Mirzapur dated 9.12.2003 in Suit No. 177 of 1995.

2. Learned counsel for the appellants has not gone into the merits of the findings of the court below and instead he has submitted that before the judgment was delivered on 9.12.2003, the plaintiffs appellants had moved application dated 7.10.2003 praying for withdrawal of the suit. Earlier he had filed application dated 8.9.2003

praying for withdrawal of the suit, but in that application he had prayed for liberty to file a fresh suit. However, in the second application dated 7.10.2003, he has not prayed for liberty to file a fresh suit. It is uncontroverted that the application dated 7.10.2003 was indeed filed in the court below before the impugned judgment dated 9.12.2003 was delivered.

3. The plaintiff in a suit is dominus litus. He has paid court fee of the suit. Hence as held by the Division Bench decision in Smt. Raisa Sultana Begam v. Abdul Qadir, AIR 1966 All 318, he has an absolute right to withdraw his suit at any time before the judgment is delivered, vide Order XXIII, Rule 1, C.P.C. It has been observed there that since withdrawing a suit is a unilateral act on the part of the plaintiff and requires no permission or order of the Court and is not subject to any condition ; it becomes effective as soon as it is done just as a compromise does. On withdrawal certain orders may be passed by the Court but they are not for giving effect to the withdrawal, but to give effect to consequences arising out of the withdrawal. The position is clear from a bare perusal of Order XXIII, Rule 1 (1), C.P.C.

4. Similar view has been taken by the Supreme Court in M/s. Hulas Rai Baij Nath v. Firm K. B. Bass and Co., AIR 1968 SC 111, vide paragraph 2.

5. The position would be different where the suit has already been decreed and the prayer for withdrawal of the suit is made in a pending appeal. When a judgment is delivered certain rights and liabilities accrue, and hence there is no unconditional right in the plaintiff to withdraw the suit before the appellate court. It is the discretion of the appellate court to allow or not to allow withdrawal of the suit, though of course in view of Order XXIII, Rule 1 (4), C.P.C. the trial court can impose costs on the plaintiff and the plaintiff is precluded from instituting any fresh suit in respect of the subject matter. However, once an application for unconditional withdrawal of the suit is filed, the Court has no right thereafter to proceed and pronounce judgment on the merits of the case.

6. For the reasons stated above, this appeal is allowed. The impugned judgment dated 9.12.2003 is set aside and the suit is dismissed with costs.

7. However, we make it clear, that since the suit for injunction has been withdrawn without liberty to file a suit, we make it clear that he cannot file a fresh suit for injunction against the same defendant in respect of the same property.

8. The appeal is allowed with the above observations.