ORDER
M.P. Menon, J.
1. The controversy is about the scope of O. 23, R. 1. The respondent instituted O. S. 103/80 before the Munsiff’s Court, for injunction restraining the defendants from cutting an enjili tree; and the suit was subsequently amended to incorporate a relief for mandatory injunction also, for restoring a thodu the defendants had tampered with. The court dismissed the suit, holding that the tree belonged to the defendants, but observing that the plaintiff should have sued for declaration of title. The plaintiff preferred A. Section 163/82 before the District Court; and soon thereafter, apparently on the basis of legal advice, he filed another suit before the Munsiff’s Court — O. S. 352/82 — for declaration of title to the property, the tree and also for damages. I. A. 719/83 was then moved in A. Section 163 for permission to withdraw O. S. 108/80, under Order 23, Rule 1, and the learned District Judge granted the permission. This revision challenges the said grant.
2. Mr. O.V. Radhakrishnan appearing for the defendants contends that Order 23, Rule 1 permits only withdrawal of suits pending in the trial court, and that once the suit is disposed of by that court and an appeal preferred, the appellate court cannot permit withdrawal of the suit itself. Some decisions are cited: but it seems to me that apart from the provisions of Section 107(2) of the Code and the direction given by the Privy Council in the last paragraph of the decision reported in Ravaneswar v. Baijnath Ram, AIR 1915 PC 24 there is enough other authority also to support the view taken by the District Court that an appeal is a continuation of the suit and that the appellate court is also competent to grant permission (see Note 11 to Order 23, Rule 1 — AIR Commentaries, 9th Edition Vol. IV).
3. It is then contended that in as much as the dismissal of O. S. 103/80 had conferred on the defendants a “vested right” to raise a plea of res judicata in any subsequent suit, as regards title, the deprival of that right by the order in the I. A. was totally impermissible. There are at least two answers to this contention. The first is that the suit was for injunction, and consequently, the observations of the trial court on title were insufficient to operate as res judicata. The other is that even assuming that there could be such vested rights, all such rights can only be subject to the provisions of the statute. Order 23, Rule 1 does not stipulate that the power thereunder cannot be used for destroying vested rights. The most that could therefore be suggested is that while exercising its discretion under the rule, the court should take into account all relevant circumstances and act in a judicial manner. To place fetters on the court’s power, which are not there in the statute, will be to add to the statute and not to interpret it.
4. Kochappi Panickar v. Govinda Pillai, ILR (1984) 1 Ker 619 does not lay down any broad proposition that once a suit has ended in a decree, it cannot be allowed to be withdrawn. The question does not appear to have been raised or argued. The facts there were enough to alert anyone that the attempt to withdraw the suit was collusive and mala fide, and calculated to over reach defendants (2) and (3); and the conclusion reached in the case was therefore perfectly legitimate. The facts of Basudeb Narayan v. Shesh Narayan, AIR 1979 Pat 73 also show that it would have been patently unjust and inequitable to permit the plaintiffs therein to withdraw the suit, because the object was to escape from the consequences of appointing a receiver. Collusion between some of the parties was evident there also. In my opinion, these decisions do not go to the extent of suggesting that there could be no grant of permission, at the appellate stage, to withdraw a suit under any circumstances.
5. The Rule empowers a court to permit withdrawal when it is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit. Obviously, it is for the court granting permission to get itself satisfied about the sufficiency of grounds; and what is more important is that the grounds must be relevant for institution of a fresh suit. The reference to the satisfaction of the court, the need to obtain permission from it, the circumstances under which grant of permission is contemplated, and that it is granted with liberty to institute a fresh suit, all indicate that in appropriate cases, the court will have the discretion to permit withdrawal of the suit itself, instead of compelling the plaintiff/appellant to carry his appeal to its logical conclusion. The court can grant permission when it finds that it is necessary for advancing the cause of justice; it can withhold it, in other cases.
6. The effect of granting permission to withdraw, with liberty to bring a fresh suit, is to place the parties in the same position as they would have been had the suit been not instituted at all i.e. to take away the possibility of a party trying to press into service the principles of res judicata, in the subsequent suit. Courts have allowed withdrawal of suits in a number of situations such as where a plaintiff has failed to seek the proper relief, or where he has been unable, despite best efforts, to get proper evidence, or in cases where the proceedings have been found to be premature. To hold that no permission at all could be given solely because a party would not be able to rely on Section 11, or because some right already recognised in the suit are likely to be undermined, would, without anything more, amount to an outright refusal to give effect to the legislative mandate even in proper cases.
7. I find nothing in Ramamurthi v. Rajeswara Rao, AIR 1973 SC 643 also, militating against the above position. All that was said there was that the court was “not bound” to allow withdrawal of the particular suit, because the parties had already invoked Sections 2 and 3 of the Partition Act in the case, and the plaintiff himself had requested for a safe under Section 2. There again, the attempt was to find out whether it would be just to grant the request the case turned on its facts, and not on any abstract formulation of the law.
8. The scope of Order 23, Rule 1 was considered by me, though in a different context, in Prabhavathi v. Kunhathabi Umma, 1981 Ker LT 438 : (AIR 1981 Ker 170). That too was an instance where the appellate court had granted permission to withdraw from the suit; and upholding what it had done, I had said :–
“It is well-known that plaints are drafted by counsel; and so long as infallibility is not a universal virtue, a mistake committed by counsel should not be the undoing of the client in every case. Where the court is satisfied that a bona fide error is committed, that high stakes are involved, and that it would be unjust on the facts and circumstances of the case to allow the defendant to take advantage of such an error, it must have the power to do what is just; and that is one thing that Clause (b) permits.”
In the present case what the petitioners (defendants in the suit) want is to take advantage of the mistake of the plaintiff in failing to sue for declaration of title, and probably also of the unnecessary digression made by the court into question of title in an injunction suit; and if is therefore difficult to conclude that the District Court has exercised its discretion except for the purpose of doing justice. In any event, the scope of scrutiny by this Court under Section 115 being what it is, it is not possible to hold, on the facts disclosed, that the court below has acted illegally or with material irregularity in the exercise of its discretion or jurisdiction.
9. The last contention is that the Rule provides for grant of permission to withdraw a suit, only when a fresh suit is to be instituted, and not for grant of permission after the institution of such a second suit. The purpose and object of the Rule has already been considered; and if the court is competent to relieve a plaintiff of the adverse consequences of mistakes committed by him in instituting or proceeding with a suit, it is not really material whether the permission is granted before or after the institution of a fresh suit. Even if the institution of the second suit before obtaining of permission to withdraw the first is not proper, that can at best only be an irregularity, which should be considered as cured at least from the time permission is obtained. It is settled law that grant of permission under the Rule is no guarantee for the maintainability of the second suit; that is a question which will have to be decided separately, as and when it is raised in the subsequent proceedings. Even at the risk of repetition, it is to be stated that where a suit is allowed to be withdrawn, it should be regarded as having never been brought; grant of permission serves no other purposes like providing for the start of a new point of limitation or giving rise to a new cause of action. The whole object is to ensure that a fair trial is not shut out, and in this context, it is of no consequence that the suit which is to ultimately determine the rights of parties is brought before the withdrawal of the earlier one.
There are thus no grounds to interfere and the C.R.P. is dismissed, but without any order as to costs.