Important Point
Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out.

Headnote:(i) Code of Civil Procedure, 1908-Order 23, Rule 1-Withdrawal of suit-Withdrawal at appellate stage-Plaintiff sold property after decree in his favour-In appeal purchasers got impleaded as respondents as per Order 22, Rule 10-Plaintiff filing application for dismissing suit as not pressed as he had compromised dispute with defendant-Not permissible - Withdrawal cannot be allowed as a matter of course but has to be allowed rarely only when strong case is made out-Rights which came to be vested with parties cannot be allowed to be nullified-Purchasers are virtually in the position of plaintiffs-Valuable right came to be vested with them and same could not be destroyed by withdrawal of suit by plaintiff vendor.
       Held : Order 23 Rule 1, quoted above, provides that a plaintiff can withdraw a suit or abandon a part of his claim unconditionally. It creates a right in favour of the plaintiff to withdraw the suit, at any time, after its institution. Once the suit is withdrawn or any part of the suit is abandoned against all or any of the defendants, unconditionally, the plaintiff cannot bring a fresh suit on the same cause of action unless leave of the Court is obtained as provided by Order 23 Rule 1(3)(b). In other words, a plaintiff cannot while unconditionally abandoning a suit or abandoning a part of his claim, reserve to himself the right to bring a fresh suit on the same cause of action. (Paras 6 & 7)
       Every suit, if it is not withdrawn or abandoned, ultimately results in a decree as defined in Section 2(2) of the Code of Civil Procedure.
       Thus a “decree” has to have the following essential elements, namely,
        (i) There must have been an adjudication in a suit.
        (ii) The adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy.
        (iii) Such determination must be a conclusive determination resulting in a formal expression of the adjudication.
       Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant. (Paras 9 & 10)
       What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystallised and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. Now, the decree can be recalled, reversed or set aside either by the Court which had passed it as in review, or by the Appellate or Revisional Court. Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits. (Para 11)
       Where a decree passed by the trial Court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in parties to the suit under the decree cannot be taken away by withdrawal of suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody’s vested rights. (Para 21)
       The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained. The High Court also committed an error in not considering the impact of Rule 1-A. (Paras 21 & 22)
       The appellants before us, no doubt, had not applied before the High Court for being transposed as plaintiffs in place of the original plaintiff who had made an application for withdrawal of suit, but it cannot be overlooked that the plaintiff had transferred the property in suit in favour of the appellants, and, that too, after a declaration was given in his favour by the trial Court that he was the owner of that property. It was thereafter that the appellants were impleaded as respondents in the appeal under Order 22 Rule 10 C.P.C. Once the property was transferred to the appellants and the appellants were also impleaded as respondents in the appeal before the High Court, they were virtually in the position of the plaintiffs. Since they had purchased the property from the plaintiff after a declaration was given in his favour that he was the owner, a valuable right came to be vested in the appellants which could not be taken away by the plaintiff by withdrawal of the suit unconditionally as the withdrawal was positively to have the effect of destroying the decree already passed in favour of the plaintiff. (Para 23)
       Held, consequently, the application for withdrawal of suit is rejected and the appeals are remanded to the High Court for deciding it on merit in accordance with law. (Para 25)
       (ii) Code of Civil Procedure, 1908-Order 23, Rule 1-Withdrawal of suit-Pendente lite transferee’s right to be heard in application move by plaintiff-Transferee got impleaded as appellant in appeal against decree-Plaintiff filing application to withdraw suit as not pressed-Transferee who has been impleaded as respondent in appeal has right to be heard. (Para 24)
       (iii) Code of Civil Procedure, 1908 - Section 2(2) - Decree -Essential elements of. (Paras 9 & 10)

Judgment

S. Saghir Ahmad, J.-V. Sivaraman (plaintiff-respondent No. 1) filed a suit against Shakunthala, -widow of his brother, for declaration of title to the suit property and for a direction to the defendants, namely, Shakunthala and Vinayagam, to put him in possession of that property and to pay the arrears of rent amounting to Rs. 18,000/- together with further mesne profits. The suit was decreed by the trial Court on 5th September, 1983 against which Shakunthala filed an appeal in the High Court and during the pendency of the appeal in that Court, the present appellants were impleaded as respondents by order dated 20.3.1995 passed in C.M.P. No. 5008 of 1984. It was indicated in that application that three days after the decree was passed by the trial Court, plaintiff (respondent No. 1) sold the suit properties to the appellants and since the properties in suit had been assigned to them, they had to be impleaded as respondents as required by Order 22 Rule 10 C.P.C.

2. Respondent No. 1, it appears, filed an application (C.M.P. No. 15941 of 1987) in the High Court for dismissing the suit as not pressed as he had compromised the dispute with Shakunthala and wanted the compromise to be recorded. This application was allowed by the High Court by its judgment dated October 28, 1987 and it is against this judgment that the present appeals have been filed.

3. Mr. K. Parasaran, learned Senior Counsel appearing for the appellants, has contended that the suit which was decreed by the trial Court should not have been dismissed as not pressed at the instance of respondent No. 1 as he had already transferred the suit properties in favour of the appellants who, being transferees-pendente-lite were vitally interested in the decree remaining intact. It was further contended that respondent No. 1 had been held to be the owner of the property in suit by the trial Court and it was after a declaration was granted in his favour that the property was purchased by the appellants. The dismissal of the suit as not pressed at the appellate stage, had the effect of destroying the decree passed in favour of respondent No. 1 and since the property in question, which was the subject matter of the suit, had already been transferred in favour of the appellants, the suit could not have been dismissed as not pressed at the instance of respondent No. 1 who had ceased to be the owner of the property and in whose place the present appellants had become the owners and were, in that capacity, impleaded as respondents in the appeal.

4. Learned counsel for respondent Nos. 1 and 2, on the contrary, contended that the plaintiff (respondent No. 1) had an unfettered right to have his suit dismissed as not pressed. He, it is contended, cannot be forced by any of the parties to the suit, to continue to prosecute the suit. It is also contended that under Order 23 Rule 1 of the Code of Civil Procedure, respondent No. 1 had the right to compromise the suit with Shakunthala (respondent No. 2) against whom he had filed the suit and since the dispute between respondent Nos. 1 and 2 had been amicably settled by a compromise, it was open to respondent No. 1 to apply to the Court to dismiss the suit as not pressed.

5. The relevant portion of Order 23 Rule 1 provides as under:-

“1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

.....................................

(2) ...........

(3) Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respec

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1999 Supreme(SC) 405

Cases Referred (4)