P L D 1961 Dacca 129 (PLP)

RAHMAN, J.‑This appeal under clause 15 of the Letters Patent arises out of a suit for the declaration of the "Dar‑Kole Karsha" title of the appellant before us in the suit lands, comprising 26 acres within Mauza Puran Para. recorded in Khatian No. 160, and for the confirmation of the appellant's possession therein and alternatively for Khas possession. Apart from the other defence raised in the suit the respondents pleaded that since the present appellant along with his brother, defendant No. 6. in the suit, had brought a partition suit being Title Suit No. 223 of 1945, in the Court of the Munsif, 6th Court, Bakerganj and the said suit had been dismissed on contest, on the ground that as neither the appellant nor his brother had any right, title or possession in the suit lands, the present suit was barred by the principles of res judicata. Furthermore, since the present appellant had withdrawn an appeal preferred by him against the order of dismissal of the suit for partition without obtaining the permission of the Court for the filing of a fresh suit, the present suit out of which this Letters Patent Appeal arises could not have been filed.

2. Both the Courts below took the view that the withdrawal of the appeal without permission to file a fresh suit barred the filing of the fresh suit and, as such, the decree dismissing the Title Suit No. 223 of 1945, remained unaffected by the withdrawal of the appeal.

3. It may also be mentioned here that the order of the appellate Court giving leave to withdraw the appeal is in these terms :‑ "Prayer for withdrawal of appeal be allowed without leave for fresh suit with costs to respondent l." It would thus appear from this order that at the time of the withdrawal of the appeal leave to file a fresh suit was asked for and refused.

4. The question of res judicata was also decided against the present appellant in both the trial Court as well as the Court of first appeal.

5. From these decisions the appellant came on second appeal to this Court and in the Second Appeal our learned brother Baquer, J., affirmed the decisions of the Courts below but granted leave under clause 15 of the Letters Patent. The only ground urged in this Letters Patent appeal is as follows :‑ "For that his Lordship's judgment involves substantial question of law of general public importance viz., whether when a Court in appeal allows the appellant's application to withdraw an appeal without leave to institute a fresh suit, that order involves withdrawal of the suit appealed from as well and whether in such a case the judgment and decree of the trial Court on the suit in question remain unaffected and whether the same also fall through."

6. At the hearing of the appeal before us to‑day, however, the learned Advocate appearing for the appellant has, with our permission, filed two additional grounds which we have permitted him to file. Both these also are really allied to the first ground and need not be repeated here.

7. It has been argued before us, as was argued in the Courts below that the withdrawal of the appeal tantamounts to a withdrawal of the suit also. In support of this contention reliance was sought to be placed on three decisions of the Calcutta High Court. The first is in the case of Gopal Chandra Banerjee v. Purna Banerjee and others. (4CWN110). This dealt with the question of the institution of a second suit after a first suit for partition of joint properties had been withdrawn with the consent of the defendant but without the leave of the Court for bringing a fresh suit. On being subsequently dispossessed from joint properties after such withdrawal a fresh suit was filed and it was held in that case that the mere fact that the subsequent suit related to the same property was not sufficient to make the latter suit one for the same subject‑matter as the former and hence the second suit was not barred under the provisions of the then section 373 of the old Code of Civil Procedure (present Order XXIII rule 1). This decision has no application however, in the facts of the present case, for we now find on a reference to the pleadings of the two suits that in both the suits the present appellant claimed title to the lands on the basis of a joint settlement obtained from the landlords and, therefore, it is a case where the same title had already been adjudicated upon in the first suit. However the question here is not so match one of res judicata but as to whether the express bar created by sub‑rule (3) of Order XXIII Rule 1 of the Code of Civil Procedure, precluding the institution of a fresh suit without the permission of the Court, is applicable or not.

8. The next decision relied upon is the case of Chamed Shaikh v. Naba Gopal Ghosh and others (19CWN359). This also in our opinion, has no application, for, there the question was whether section 153 of the Bengal Tenancy Act constituted a bar to the appeal and it was held that the provisions of Order XLIII, Rule 1 of the Code of Civil Procedure were applicable to suits between landlords and tenants by reason of the provisions of section 143 (2) of the Bengal Tenancy Act but subject to the restrictive provisions of section 153 of the Bengal Tenancy Act and not otherwise. The only purpose for which this case was relied upon was to show that an application made for the re‑bearing of an appeal after it had been decreed ex parte, was treated as an application in the suit itself, as the appeal was considered to be incompetent.

9. Lastly, the decision of the Privy Council in case of S. P. A. Anamalay Chetty v. B. A. Thornhill (36 C W N (P. C.)), does not also assist the appellant in the present case, for there their Lordships were not concerned with what would be the result of the with drawal of an appeal. The point before them was as to whether a second suit between the same parties more or less upon the same cause of action was barred by reason of resyudicata when, in fact, an appeal against the previous decree was pending. Their Lordships held that a second suit brought during the pendency of the appeal under the apprehension that the first action might ultimately fail because of certain technical defects, was maintainable subject to the law of limitation, even though the Court is to see that the plaintiff does not get a decree twice over for the same subject‑matter.

10. It appears that when the appeal is withdrawn simpliciter it has the effect of restoring the status quo ante: namely, the position is as if the appeal had not been filed. Thus, the decree of the Court below is left intact for otherwise the withdrawal of the appeal, if it also amounted to a withdrawal of the suit as sought to be contended on behalf of the appellant; would amount to an adjudication really of the suit itself on its merits The order granting permission to withdraw, however, is not a decree in that sense and it cannot, therefore, be given any greater effect. It does not judicially deal with the subject‑matter of the suit but merely recognises authoritatively that the appellant does not wish to go on with his appeal. From this point of view, we have no difficulty in coming to the conclusion that the with drawal of the appeal does not and cannot also amount to a with drawal of the suit itself. Indeed under section 107 of the Code of Civil Procedure the appellate Court has the power also to grant permission to withdraw the suit and there are innumerable decisions which would indicate that if it is intended to withdraw a suit in the appellate stage such permission is expressly asked for and obtained. We might also state here that we find support for this view from a decision of the Allahabad High Court in the case of Mi. Deoki and others v. Jwala Prasad (A I R 1928 All. 670). For these reasons, we do not see any substance in this appeal. This appeal is, accordingly, dismissed with costs. SATTAR, J.‑I agree. K. B. A. Appeal dismissed.