1. ' Civil Revision by some of the defendants in the civil suit for partition of the joint property involved interesting points for decision in them, which shall unfold them in the succeeding paragraphs.
2. ' Two residential houses, two shops and a vacant plot, situated in Town Committee, Kallurkot were owned by Haji Muhammad Suleman. He died in the year 1981. He was survived by a widow, four sons and a daughter, namely Mst. Niazan, Shamas-ud-Din, Muhammad Daood, Liaqat Ali, Siraj-ud- Din and Mst. Sitran Begum alias Sitara Begum. The daughter instituted a suit against other heirs of the deceased for separating her 7/72 share in the joint property. Suit was instituted on 26-10-1989, in the Civil Court at Kallurkot, in District Bhakkar. Plaint was thumb-marked by her.
3. ' On 14-11-1989, she gave a registered power of attorney to her husband namely Muhammad Rafi, and, conferred power and authority on him specified in the deed. Thereafter, amended plaint written on court-fee stamps signed by the general attorney was put in. Defendants 2 and 5 namely Muhammad Daood and Siraj-ud-Din conceded the claim in the plaint. Other defendants had not submitted their written-statement, when on 14-6-1990, the general attorney stated to the Court that there was a compromise and the suit is withdrawn. The trial Court recorded his statement and adjourned the proceedings to 20-6-1990, for making of an order in the suit. On 18-6-1990, the plaintiff submitted an application for rescinding the authority of the general attorney for withdrawal of the partition suit and desired to proceed with the trial of the suit. She also revoked the registered power of attorney, on 18-6-1990. On 20-6-1990, the trial Court dismissed the suit, as withdrawn by way of compromise based upon the statement of Muhammad Rafi recorded on 14- 6-1990. Plaintiff filed an appeal on 22-7-1990. It was allowed, on 15-1-1992, by learned District Judge, Bhakkar. He found that withdrawal of the suit by general attorney was unauthorized and was also without consideration. Consequently, unconditional withdrawal was set aside and the suit was remanded for trial in accordance with law. Defendants preferred a joint petition for revision of the above order. By an order passed on 28-3-1992, names of Muhammad Daood and Siraj-ud-Din were transposed to the. respondents' side.
4. ' It was agreed that the property in suit was owned by Haji Muhammad Suleman and parties were his legal heirs. It was also agreed that plaintiff had not transferred her share of the joint property and it was still intact in her name. From the above, it is seen that following points emerge for consideration. (1) Whether registered general power of attorney gave authority for withdrawal of the partition suit; (2) Whether withdrawal was complete, at the moment of making of the statement for it and no order was required from the Court to give efficacy to it; (3) If an order from the Court was required and withdrawal was not complete on the statement of the general attorney, whether plaintiff could withdraw the wish for withdrawal of the suit and be relieved of the adverse effect of the statement by her general attorney; (4) Whether unconditional withdrawal in the suit for partition of a joint property was any bar for its fresh institution for effecting partition by metes and bounds and in that event, interference in revisory jurisdiction shall be fruitful. I shall take up the above points in seriatim.
5. ' Registered power of attorney was expressed in wide terms. It gave extensive authority to the attorney for filing of different kinds of proceedings and taking of various steps in them. It expressly conferred power for a compromise and withdrawal of the proceedings. Towards the end of the deed, it recited that all acts and deeds taken and performed by the general attorney shall be acceptable to and be held binding upon the Principal. However, general power of attorney expressly excluded power for transfer of the property owned by the plaintiff. Therefore, it was inaccurate to suggest that general attorney was not authorized to make a statement for withdrawal of the partition suit; In my view, he had the necessary authority to withdraw from the partition suit. As for the second point noted above, learned counsel for the parties failed to cite any decided case near to and helpful for its decision. But upon my own research, I could lay hands upon a few decided cases which were in point and assisted its decision. First case relevant to the inquiry was that of Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy and others PLD 1959 SC (Pak.) 287.
6. On comparison of sub-rules (1) and (2), it was observed at page 290:-- "It will be noticed on a perusal of sub-rules (1) and (2) that whereas under sub-rule (1) the plaintiff may withdraw his suit at any stage, of the proceedings and without an order of the Court under sub-rule (2) he has to obtain the permission of the Court for withdrawal and the Court's own power to permit withdrawal is limited to the instances specifically mentioned in clauses (a) and (b).
7. Again, whereas the result of a withdrawal without permission under sub-rule (1) is that the plaintiff by sub-rule (3) is precluded from instituting a fresh suit, no such consequence is stated in sub-rule
(2) as following from the withdrawal of the suit and not complying with the conditions on which the permission to withdraw was given."
8. ' In an earlier portion of the judgment (at page 289) it was noticed that:-- "The basic principle in bar of a party's right to sue is that he is not barred from suing, unless the suit is barred by some provisions of the Civil Procedure Code. Such provisions are found in scattered places in the Civil Procedure Code, and the most important of them are section 11, Order II, Rule 2, Order IX, Rule 9."
9. ' Thereafter, their Lordships of the Supreme Court quoted rule (1) of Order XXIII and commented upon its requirement and legal effect. In Sirajuddin v. Mst. Amtul Rauf and 12 others PLD 1977 Kar.
10. 933, Zafar Hussain Mirza, J. who later became a Judge of the Supreme Court dealt with the point at page 936 and said:-- "Now there is no doubt that Order XXIII, Rule 1, clause (3), C.P.C. authorises the plaintiff to withdraw the suit at any time after the institution of the suit without the permission of the Court and the only consequence of such withdrawal is that he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subejct-matter. As a general rule, . therefore, the plaintiff can do this of his own accord And the order of the Court is not necessary for the purpose. However, it seems that the Courts have taken the view that plaintiff cannot be allowed to withdraw the suit so as to deprive the defendant of any rights that may have accrued to him. Incidents of such cases are in case of partition where the defendant has become entitled under section 3 of the Partition Act to purchase the plaintiff's share at a valuation to be fixed by the Court or where in a suit for partition or a suit for accounts a preliminary decree has been passed. In such cases, judicial opinion has leaned against giving the plaintiff an absolute right of terminating the suit by withdrawing it." (underlining is mine).
11. ' At page 939, the learned Judge proceeded to observe:-- "The only .question that now falls for determination is whether the plaintiff has absolute right to terminate the proceedings by unconditionally withdrawing the suit. I have already stated that normally the plaintiff who wishes to withdraw the suit cannot be forced by the Court to prosecute the proceedings which he does not wish to continue. In exceptional circumstances, however, the Court has the discretion to refuse the termination of the proceedings in cases where the defendant has acquired valuable rights or in cases where the ..., plaintiff has sued in representative capacity so that the withdrawal of the suit would affect the rights of others, or in cases where the parties arrayed as defendants are also plaintiffs in the proceedings, so that a decree in their favour must necessarily be passed if the suit culminates in judgment."
12. ' In Yeshwant Govardhan v. Totaram Avasu and others AIR 1958 Bom. 28 (V 45 C 11) after noticing the contentions of the learned counsel for the parties, on Order XXIII, Rule I, learned Judges of Division Bench dealt with the matter thus:-- "(6) Now, a suit may be disposed of in various ways. A suit may be disposed of by allowing plaintiff's claim. A suit may be disposed of by the dismissal of a plaintiff's claim. A suit may, again, be disposed of by a compromise between the parties and by a consent decree being taken between them and lastly, a suit may be disposed of by withdrawal as indicated in O.XXIII. It seems to us and it will be conceded, that when a suit is filed, the Court has control over the proceedings initiated by the suit. If such a view were not taken, it would lead to confusion in the proceedings. The suit must be shown to be disposed of in a manner permitted by the law.
(7) Mr. Kotwal argues that there is nothing to prevent a plaintiff from withdrawing his withdrawal, because to withdraw from a suit is a matter for the plaintiffs choice and the only thing which the defendant is concerned with is to have an order for costs made in his favour, as provided in Order XXIII, rule 3. If a plaintiff withdraws from his suit or abandons part of his claim, it is not certainly a matter in which the defendant can have his say. The defendant cannot compel a plaintiff to prosecute his suit and if a plaintiff, therefore, withdraws his suit, it is entirely a matter of his choice.
13. If, therefore, the plaintiff has a right to withdraw his suit, he has, equally, a right to withdraw his withdrawal and so long as the Court has not made an order, showing that the withdrawal has become complete or effective, there is always a locus poenitentiae for the plaintiff to withdraw his withdrawal. In so holding, there is no injustice to the defendant. If the defendant cannot compel a plaintiff to continue his suit, the defendant cannot equally, compel a plaintiff not to withdraw his withdrawal. We think, therefore, that, in law, the true position is that it is open to a plaintiff to withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by an order of the Court. This view is supported by at least two decisions reported in Lakshmana Pillai v. Appalwar Alwar Ayyangar AIR 1923 Mad. 246 (A) and in Midnapore Zemindary Co. Ltd. v. Bijoy Singh AIR 1941 Cal. 1 (B).
(8) Notwithstanding the principle deducible from these two cases, Mr. Patwardhan contends that no order of the Court is necessary upon an application made by the plaintiff for withdrawal of his suit. In our opinion, the contention is not correct, and cannot be supported. It is true that Order XXIII, rule 1, does not require in terms that the Court should make an order in case which the plaintiff withdraws his suit without any permission to bring a fresh suit. But under' Order XXIII, rule 1, the Court has to make an order about costs, which suggests that the Court has to make an order after the plaintiff withdraws his suit. Moreover, the consequences of the plaintiff, withdrawing his suit, is to debar the plaintiff from instituting any fresh suit in respect of the subject-matter or part of the claim withdrawn by him. Surely, if that is the consequence of a withdrawal, the proceedings before the Court must show that the plaintiff has withdrawn either his suit or part of his claim. In our view, therefore, the Court below was wrong in holding that it was not open to the plaintiff to withdraw his application for withdrawal, Exh.36."
14. ' An equally interesting and illuminative discussion of Order 23, Rule 1 of Civil Procedure Code is contained in a Division Bench judgment of Allahabad High Court in Smt. Raisa Sultana Begum and others v. Abdul Qadir and others AIR 1966 All.
318. Leading judgment was given by Honourable, the Chief Justice of the Court and the other learned Member of the Bench subscribed to his views. It shall be worthwhile to quote a few extracts from the judgment for a profitable reading of them to show as to how the Bench viewed, Rule 1 of Order 23, regarding unconditional withdrawal of the suit and as also when the withdrawal was complete. These passages read:--
(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 may be better to say that he withdraws from the suit.
15. ' 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 Ed. 912 at p.914.
16. ' It is this right that has been given statutory recognition through R.1(1). The right is not fettered by any conditions; it is absolute right which a plaintiff can exercise at his sweet will at any time before the judgment is delivered. In Allah Bakhsh v. Niamat Ali 1892 All WN 53(1), the Court described the right as 'absolute' and capable of being exercised 'without any permission from the Court'. Sub-rule
(4) is a proviso to sub-rule (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 or permission or confirmation of the Court. In the instant case the withdrawal was without liberty to file a fresh suit and consequently we shall leave oUt of consideration withdrawal with liberty to file a fresh suit. In Hasan Badsha v. Raziah Begum AIR 1949 Mad. 772, it was observed that normally a plaintiff has a right to withdraw his suit without reference to the defendants' convenience and without the Court's permission; (the High Court added that there is a limit to the right in suits of a particular nature but we are not concerned with such suits here. Reference may also be made to Veeraswa mi v. Lakshmudu AIR 1951 Mad. 715 and Mahant Biharidasji v. Parshotam Das (1908) I L R 32 Bom.
17. 345.
(5) Next it is to be noted that no act is required to be done by the Court to complete or effectuate a plaintiffs withdrawal of his suit. There is no provision for any act to be done in the suit by the Court for making the withdrawal effective or even after the withdrawal it is not even required to pass any order. Withdrawal of a suit is itself its end. A plaintiff withdrawing his suit is liable for such costs as the Court may award; so the Court is empowered to pass an order only in respect of the costs. The liability for costs arises out of the plaintiffs withdrawing his suit; the suit has been withdrawn and consequently he becomes liable. The Court's order awarding costs against him is a consequence of the withdrawal, which means that the withdrawal is already complete and effective. The order is not an element of the withdrawal and is not required to complete or effectuate it. In Lakshmanan Chetty v. Muthaya Chetty (1921) 40 Mad. LJ 126. Sadasova Aiyar, J. pointed out at p.137 that as regards unconditional withdrawal, It is ... wholly at the option of the plaintiff and the Court has nothing to do with it except as regards providing for costs ... and it is only where he wants some permission that he has to make an application under C1.2". In I L R 32 Boni. 345 (supra) Sir Lawrence Jenkins, C.J. said at p.347 that:-- "If a party desires to withdraw from the suit with such liberty, then he must apply to the Court to permit him so to withdraw. If he does not desire to have that liberty, then he can withdraw of his own motion and no order of the Court is necessary."
18. ' We respectfully agree with these observations and respectfully differ from the contrary observations to which we shall refer presently.
(6) The provision is that 'the plaintiff may withdraw his suit' so he has to do an act and it is a unilateral act, i.e., an act to be done solely by him and neither the defendant nor the Court (which are the only other persons concerned with the suit) has any act to do to complete or effectuate it. It is even more unilateral than the institution of a suit, which requires co-operation of the Court (unless the Court cooperates in receiving the plaint there is no institution).
(7) There is no provision laying down the procedure for withdrawing a suit, the manner in which it can be withdrawn and the essential physical acts required to be done to constitute withdrawal.
19. Withdrawal can be in any form (see Muhammad Ali v. Shujat Ali AIR 1917 Nag. 1 and Gulkandi Lal v.
20. Marnni Lal ((1901) I L R 23 All. 219), and can exist even before communication of the fact to the Court.
21. When a person institutes a suit he first makes a mental decision to institute it and then does the physical act of preparing a plaint signing and verifying it and presenting it in Court. A suit is instituted only when this physical act is done; no suit came into existence merely on his deciding in his mind to institute it. In the same way a physical act is essential in order to withdraw a suit, merely deciding mentally to withdraw is of no consequence and an overt act must be done. The usual or normal overt act is that of informing the Court that the suit has been withdrawn; as soon as this information is given, withdrawal of the suit comes into existence or becomes a fait accompli and the suit stands withdrawan from that moment. An order awarding costs against the plaintiff will be an act to be done by the Court in consequence of the withdrawal. There cannot be such an order unless the withdrawal is there as a fact. A physical act of settling the dispute with the defendant out of Court by which his grievance is fully removed may be another overt act having the effect of withdrawal. The essential fact to be remembered is that a plaintiff must do some overt or physical act in order to withdraw the suit; he cannot withdraw it simply by deciding to withdraw it or by treating it as withdrawn in his mind. Since it is for the plaintiff to exercise the right of withdrawing his suit, he has not to make any application to the Court or pray for any order. He has to do the act of withdrawal himself and then he should inform the Court so that it knows that it has been withdrawn and is governed in future proceedings by the knowledge. On a suit being withdrawn it has to decide what costs should be awarded against the plaintiff and naturally it cannot decide this unless the withdrawal is brought to its notice. If the withdrawing plaintiff is the only plaintiff and the whole suit is withdrawn the Court will consign the record to the record room and will not have to do anything further in the suit. If there are other plaintiffs, or only a part of the suit is withdrawn, it will deal only with the remaining plaintiffs or the remainder of the suit. A written information given by a plaintiff to the Court of the withdrawal may take the form of an application but in the eye of law it must be treated as mere giving of the information. The Court may even pass some such order as 'allowed to be withdrawn' or `dismissed as withdrawn' but this has no greater effect than its simply writing 'seen' or 'noted'. In the instant case, there were two plaintiffs besides the withdrawing plaintiff and he made an application praying that his name be removed from the array of plaintiffs, but it does not follow that there was no withdrawal by him so long as no orders were passed by the Court on the application. It would be the Court's own duty to expunge his name from the array of parties on being informed of the withdrawal; he did not have to pray for this at all.
22. He did inform the Court of the withdrawal and of his having been left no interest in the suit and the mere fact that this information took the form of an application inviting a certain order did not mean that there was no complete or effectual withdrawal so long as the Court did not pass the desired order.
(8) Since withdrawing a suit is a unilateral act to be done by the plaintiff, 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. Any information of it given to the Court is no part of it, so also any order passed by the Court on receiving the information. The act is like a point and not continuous like a line having a beginning and an end. Either it is done or not done; there is nothing like its being done incompletely or ineffectively. The consequence of an act of withdrawal is that the plaintiff ceases to be a plaintiff before the Court. If he is the only plaintiff and withdraws the whole of the suit, the suit comes to an end and nothing remains pending before the Court; if he is only one of several plaintiffs, he ceases to be a party and the suit of only the other plaintiffs continues.
23. ' If he withdraws only a part of the suit that part goes out of jurisdiction of the Court and it is left with only the other part. This is the natural consequence of the act; a further consequence imposed by sub-rule (3) is that he cannot institute any fresh suit in respect of the subject-matter. He becomes subject to this bar as soon as he withdraws the suit. It follows as a corollary that he cannot revoke or withdraw the act of withdrawal. If he is absolutely barred from instituting a fresh suit, it means that he is absolutely barred from reviving his status as a plaintiff before the Court. The bar on his instituting a fresh suit would be meaningless if he were permitted to revoke the withdrawal and get himself restored to the status of a plaintiff in respect of the withdrawn suit. There is no provision allowing revocation of the withdrawal. We respectfully agree with Horwill, J. in Rajagopala Rao v.
24. Bhanoji Rao AIR 1940 Mad. 765, where he observed at p.766:-- `0.23 ... does not make any provision for withdrawing a withdrawal, and so it would seem that there is no provision in the Code whereby the withdrawal of a suit ... can be cancelled. The only thing that can now be done for the plaintiff is to grant her permission ... to file a fresh suit.'
25. ' It stands to reason that when on withdrawal the plaintiff ceased to be a party and the Court ceased have jurisdiction over his suit and, thus became functus officio nothing but a fresh suit can again invest the Court with jurisdiction over it. As far as the withdrawn suit is concerned the suit is at an end and no further proceeding can be taken in it; the suit and the plaintiff do not exist and no application such as one for revoking the withdrawal can be made in the suit or by the plaintiff or entertained. So long as the suit was pending the plaintiff had a status and could exercise the right of withdrawing the suit which vests in a plaintiff; after he ceased to be the plaintiff on withdrawal he is left with no status and cannot make any application or cannot do any act as a plaintiff. We are supported in this view by the decision of Ross and Pearson, JJ. in Rdjah Shamsher Bahadoor v.
26. Mahomed Ali Beg (1867) 2 Agra HCR 158.
(9) In Ram Bharos Lall v. Gopee Beebee (1874) 6 NWP 66, it was held by another Bench of this Court, of which Pearson, J. was a Member, that a plaintiff who has withdrawn his suit is at liberty to rescind the act of withdrawal at any time, before the final judgment because:-- 'It is difficult to understand why a plaintiff should have liberty to withdraw from a suit and not have equal liberty to rescind the act of withdrawal at any time before final judgment.'
27. ' We may with respect point out the reason and it is that the right of a plaintiff to withdraw his suit is not a divine right but a right expressly conferred upon him by Order 23, rule 1 and no right is similarly conferred upon him to revoke or rescind the withdrawal. So long as he remains the plaintiff he may do any act which he may do in that capacity; he cannot, after withdrawal of the suit resulting in the loss of the capacity, do an act which can be done only in that capacity. The learned Judges distinguished Raja Shumsher Bahadoor (1867) 2 Agra HCR 158 (supra) on the ground that in that case there was a long interval of time between the withdrawal and the revocation of withdrawal whereas in this case there was an interval of only one day. With great respect, we find it difficult to understand that whether withdrawal can be revoked or not depends upon the delay with which it is revoked. The question is of a right and not of delay with which it is sought to be exercised.
28. In Rai Kumari Devi v. Nirtya Kali Debi, (1910) 7 Ind Cas 892 (Cal.), it was held at p.893 that:-- `It was competent to the plaintiff to recall her petition of withdrawal at any time before the final order had been passed.'
29. ' The learned Judges relied upon the case of (1874) 6 NWP 66, and distinguished the case of Shumsher Bahadoor (1867) 2 Agra HCR 158. It has not been pointed out by them why an order of the Court is required in order to complete or effectuate the withdrawal and have not cited any authority for imposing this condition. We have pointed out that 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. Order 23, rule 1 does not require any order; there can be no question of an order if no application is to be made by the plaintiff. We, therefore, respectfully disagree with the view of the Calcutta High Court. In Mukkammal v. Kalimuthu Pillay 15 Ind Cas 852 (Mad.), Sundara Aiyar, J. was of the view that the plaintiff has a right to revoke the act of withdrawal, while Sadasiva Aiyar, J. was inclined to the view that neither can he revoke his withdrawal application except on good grounds nor can he be allowed to play fast and loose with the litigation launched by him at his sweet will and pleasure. Sundara Aiyar, J. referred to the absence of any provision in the Code giving a right to a defendant to insist that a petition of withdrawal not acted upon by the Court must be enforced as against the plaintiff and thought that a mere petition of withdrawal does not debar the plaintiff from proceeding with the suit unless, in the meanwhile, the suit has been dismissed by the Court. We respectfully disagree as no order of the Court is required when a plaintiff withdraws a suit and there is no justification for saying that the act of withdrawal is not complete so long as the Court does not dismiss the suit. The bar imposed by sub-rule (3) operates on withdrawal and not on any order by the Court dismissing the suit and must be deemed to include the prevention of revival of the suit.
30. ' In Lakshmana Pillai v. Appalwar Alwar Ayyangar AIR 1923 Mad. 246, it was assumed by Oldfield, J. that an application for withdrawing a suit is conditional on the passing of an order regarding costs.
31. But it seems to us, with respect to the learned Judge, that there is a distinction between withdrawal by a plaintiff of the suit and his liability to be awarded the costs of the suit. The liability arises out of the withdrawal but it would be wrong to argue that so long as the liability is not imposed the withdrawal is not complete. There may be an interval of time between the withdrawal and imposition of the liability through an order without its in any way derogating from the effect of the withdrawal. The facts in Midnapur Zamindari Co. Ltd. v. Raja Bijoy Singh Dudhuria AIR 194] Cal. 1, were distinguishable because the plaintiff sought to withdraw from the suit with permission to file a fresh one and that required an order from the Court granting permission. There is a distinction between withdrawal without liberty to file a fresh suit which is at the absolute discretion of the plaintiff and withdrawal with liberty which can be done only when the Court grants permission. In this case the Court postponed passing orders on the application for permission to withdraw with liberty and before the orders were passed the plaintiff withdrew the application. A plaintiff may have a right to withdraw an application for withdrawal with liberty but it does not follow that a plaintiff who withdraws the suit under sub-rule (1) has a right to revoke the withdrawal before the Court passes some order. Then we come to Yashwant Govardhan v. Totaram Awasu, AIR 1958 Bom. 28, in which Dixit and Vyas, JJ. held that an application by a plaintiff withdrawing the suit requires an order, that so long as no order is passed it can be withdrawn and that no reasons are required for his withdrawing the application. With great respect we find it difficult to agree. It is true that a Court has control over the proceedings initiated by a plaintiff through a suit but the plaintiff has been given an absolute right to withdraw from it at any stage and the Court has no control over this act of withdrawal. The learned Judges said at p.29: `If the plaintiff has a right to withdraw his suit, he has, equally, a right to withdraw his withdrawal, and so long as the Court has not made an order showing that the withdrawal has become complete or effective there is always a locus poenitentiae for the plaintiff to withdraw his withdrawal.'
32. ' The right to withdraw has been expressly conferred by Rule 1(1); there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that the right to withdraw includes in itself a right to revoke the withdrawal. As we said earlier, certain consequences arise from the withdrawal which prevent his revoking the withdrawal, the withdrawal is complete or effective as soon as it take place, and, in any case, as soon as information of it is conveyed to the Court, and no order of the Court is required to effectuate it or even to recognise it. Then the learned Judges referred to the order regarding costs and inferred that the Court has to make an order after the withdrawal. Whatever order the Court may, or may have to make is not regarding the withdrawal but regarding the effect or consequences of the withdrawal, which is quite a different matter. The proposition that a plaintiff has an absolute right to withdraw his application for withdrawal is not accepted universally and we have already referred to the observations to the contrary. Lastly, we come to Masulipatam Municipality v. Venkatappayya AIR 1960 Andh. Pra.
572. Umamaheshwaram and S. Qamar Hassan, JJ. observed at p. 575:-- ' Without the stroke of the judicial pen under Order 23, rule 1, sub-rule (3), Cr.P.C. the suit is not terminated and that in appropriate cases the provisions of 0.1, R.10 or 0.22, R.10, C.P.C. may be applied.
33. ' The order referred to in rule 1, sub-rule (3) is only one imposing costs upon the plaintiff on account of his withdrawal from the suit; this provision does not contemplate any order.
(10) In AIR 1958 Bom. 28 (supra) and AIR 1923 Mad. 246, the doctrine of locus poententiae was advanced and it was held that a plaintiff can revoke his withdrawal of a suit at any time before an order is made by the Court regarding withdrawal. With great respect, we may point out that if locus poenitentiae has to be allowed it must be allowed by the legislature and not by the Courts. We see no reason why we should be so solicitous about a plaintiff on the threshold of withdrawal of his suit that we should allow him locus poenitentiae. There is no reason why a plaintiff should claim to have locus poenitentiae and in any case whatever locus poenitentiae he needs is already there between his mental decision to withdraw and his informing the Court of the withdrawal. He has no locus poenitentiae in the matter of institution or of compromise of a suit and there is no justification for saying that he has locus poenitentiae after withdrawal of the suit. The doctrine of locus poenitentiae falls to the ground when it is realised that he has not to apply for withdrawing and that he needs neither the permission of the Court for withdrawing nor its order allowing, recognizing or confirming the withdrawal."
34. ' In face of equally weighty and convincing conflicting judicial opinion on the right of the plaintiff for an uncondition withdrawal of his suit and the time when the withdrawal takes effect, though the task appeared to be a little difficult, yet upon close reading of conflicting views and the reasoning advanced in their support, I found myself more near the views expressed in the case of Yashwant Govardhan supra. Though, the plaintiff under sub-rule (1), can ordinarily withdraw the suit at any time and also abandon a part of his claim in it, against all or some of the defendants at his choice and no permission of the Court is required for it, yet in some instances, the Court was empowered to control act of the plaintiff and refuse termination of proceedings at his instance. Some of the instances of such cases were already quoted above. Similarly, in terms of sub-rule (3) a plaintiff by terminating the proceedings by an unconditional withdrawal of the suit was liable to pay costs to the other side. Rule gave power to the Court to determine the amount of costs. So, when the plaintiff applies or informs for an unconditional withdrawal of the suit, it falls on the Court to consider, whether in view of the nature and stage of proceedings, plaintiff could be permitted to unconditionally withdraw and if he could, what were the amount of costs payable by him to the other side. Unless the afore-noted two acts are decided upon by the Court, the withdrawal is not complete. In my view, without injecting life into the statement for unconditional withdrawal of the suit by the order of the Court, the withdrawal is not finally effectuated. Till then, the lis is alive on the cause-list of the Court. Therefore, if the view that lis was live, till an order for terminating it was passed by the Court was correct, it could not be seriously doubted that the plaintiff could withdraw the desire expressed for withdrawal of the suit. This view was taken in AIR 1923 Madras 246 and was reiterated in the case of Yeshwant Govardhan. It was observed in these cases that there does not seem to be any reason why withdrawal of a withdrawal should not be recognized. Upon this view, it was open to the plaintiff to withdraw the request for an unconditional withdrawal of her suit expressed by the general attorney. It is clear that soon after the general attorney had made a statement to the Court for withdrawal of the suit, the plaintiff had appeared and repudiated his act.
35. It was asserted that unconditional withdrawal was detrimental to her interests in the property and was intended at her deprivation of it. In the circumstances, the Court had inherent jurisdiction to relieve her of the distress to prevent miscarriage of justice to her. Learned Additional District Judge, therefore, rightly intervened to correct an obvious error of jurisdiction committed by the trial Court.
36. His order was legal and just. I have no hesitation to uphold it. There was yet another important factor which induced me towards this view and that was that withdrawal of a partition suit may not be a bar for a fresh suit of the kind. Until the joint property was actually partitioned and rights in it finally adjusted between the co-owners, the cause is recurring. The reason for it is that the right to enforce a partition is a continuous right which is a legal incident of joint property and enures so long as this character of the property continues. Therefore, it shall be a purposeless exercise to drive the plaintiff to another round of litigation for claiming her share of the joint property. It was not the true object of law nor the purpose of justice. There was a clear view that when justice had already been done, interference in revision need not be caused. The result, therefore, is that there is no merit in this case and, as such, the revision petition is dismissed with no order as to costs.
37. Records be returned.