K. RAMACHANDRA RAO, J.

( 1 ) THE plaintiff who is the appellant in the above second appeal has filed this petition C. M. P. 5380/1977 for peimission to withdraw the suit o. S. No. 705/1971 on the file of the court of the 4th Assistant Judge, City civil Court, Hyderabad, which is the subject matter of the above second appeal with liberty to pursue the other suit viz. , O S. No. 360/1976, on the file of the 6th Assistant Judge, City Civil Court, Hyderabad. The petition is purported to be filed under Order 23, Rule I read with Section 151 C. P. C.

( 2 ) THE petitioner (Plaintiff) filed the suit O. S. No. 705/71 on the file of the Court of the 4th Assistant Judge, City Civil Court, Hyderabad, for a permanent injunction restraining the defendants, their agents and servants from interfering with his peaceful possession and enjoyment of the suit schedule land admeasuring 1483 square yards equivalent to 1245-72 square metres insurvery No. 6 situated at Mellapalli, Humayaonagar, Hyderabad. The plaintiff set up title to the said land and also claimed to be in possession of the same on the date of filing of the suit but filed the suit only for a perpetual injunction.

( 3 ) THE defendants on the other hand set up a plea that the suit property belongs to the Deity Sri Venkateswara Swami varu situate in humayunnagar, Hyderabad and denied the title and possession of the plaintiff.

( 4 ) THE trial Court framed the following issues: 1) Whether the plaintiff was in possession of the suit property on the date of the suit? 2) Whether the suit is properly valued and this court has no pecuniary jurisdiction to entertain the suit? 3) Whether Lord Venkateswara Swamy and the Endowments department are necessary parties to the suit? 4) Whether the defendants are entitled to exemplary costs? 5) To what relief? on a consideration of the evidence, the trial court held on issue No. 1, that the plaintiff was in possession of the suit property on the date of the suit; on issue No. 2 that the suit was properly valued and that the trial court had jurisdiction to entertain the suit and on issues No. 3, that the Deity lord Venkateswaraswamy and the Endowments Department, were not necessary parties to the suit. The question of awarding exemplary costs to the defendants did not arise. In view of the findings on issues 1 to 3 the suit was decreed with costs.

( 5 ) AGAINST the said judgment and decree, the defendants preferred an appeal A. S. 181/1974, to the court of the Chief Judge, City Civil Court hyderabad, and the learned Chief Judge, by his Judgment dated 4-11-1975 found that (he plaintiff was not in possession of the suit property on the date of the suit, that the alleged interference by the defendants with the possession of the plaintiff was not true, that the plaintiff was not entitled to the permanent injunction, that the suit as framed, was not maintainable and that it was held to be not bad for non-joinder of the Temple or the endowments department. On those findings the learned Chief Judge, allowed the appeal and dismissed the suit with the costs of the defendants 1, 2, 4 and 5 throughout.

( 6 ) AGAINST the said Judgment afld decree, the plaintiff has filed the above Second Appeal 10/1976.

( 7 ) THE plaintiff appellant has now filed this petition CMP. 5380/ 1977 for permission to withdraw the suit with liberty to pursue another suit o. S. 360/1976, on the file of the 6th Assistant Judge, City Civil Court, hyderabad. In the affidavit filed in support of this petition, the plaintiff stated that he had been advised to file a separate suit and he filed the suit o. S. 360/1976, and that the same is pending before the 6th Assistant Judge city Civil Court, Hyderabad, and as he had filed a comprehensive suit, he should withdraw the present suit out of which this Second Appeal arises.

( 8 ) THE 2nd defendant-2nd respondent filed a counter-affidavit opposing the said petition for withdrawal of the suit contending that the defendants should not be deprived of the benefits of the findings, of fact recorded in the appeal by the learned Chief Judge, City Civil Court and if the plaintiff is permitted to withdraw the suit at this stage, the defendants would be deprived of the plea of res judicata with regard to the finding recorded by the lower appellate court.

( 9 ) SRI B. V. Subbarayudu, learned counsel for the petitioner-appellant-Plaintiff contended that both the courts below found that the plaintiff being out of possess:on, the suit for mere injunction was not maintainable, that he should have filed a suit for declaration of title and recovery of possession, that the suit as framed was not maintainable, and this shows that there was a formal defect in the framing of the suit and hence the plaintiff would be entitled to withdraw the suit under Order 23 Rule 1 (2) C. P. C. with liberty to file a fresh suit. Alter, natively he contends that the plaintiff has got an unfettered right to with, draw the suit under Order 23 Rule 1 and section 151 C. P. C.

( 10 ) SRI K. V Ayyappa Sastry, learned counsel for the Respondents-defendants contended that the plaintiff has no unfettered right to withdraw the suit particularly at the appellate stage that no permission can be given to withdraw the suit when it affects, the rights which had accrued to the defendants on account of the findings recorded by the courts below.

( 11 ) IN order to appreciate these contentions, it is necessary to refer to the provisions of Order 23 Rule (I) to (3) C. P. C. which are as follows :-"o 23 R 1 (1) At any time after the institution of a suit the plaintiff may , as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied :- (a) That a suit must fail by reason of some formal defect, or, (b) that there are other 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 abandon part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2) 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 subject matter or such part of the claim. "xx XX XX it is clear from the aforesaid provisions that the plaintiff can withdraw his suit under Order 23 Rule 1 (1) C. P. C. without the permission of the court ; but he will then be precluded from instituting any fresh suit in respect of the same subject matter or part thereof on the same cause of action. Under sub rule (2) a plaintiff may in the circumstances mentioned therein be permitted by the court to withdraw from such suit with liberty to institute a fresh suit in respect of the same subject matter and on the same cause of action subject to the condition that the court should be satisfied that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit in respect of the same subject matter of the suit or part of a claim.

( 12 ) IN the instant case, the provisions of Order 23 Rule 1 (2) C. P. C, are not applicable to the facts of this case as admittedly the plaintiff had already filed a suit O S 360/1976 on the file of the court of the 6th Assistant judge. City Civil Court. Hyderabad, for declaration of his title and recovery of possession. Therefore, the question of granting permission to the plaintiff to withdraw from the earlier suit with liberty to institute a fresh suit in respect of the same subject matter of the previous suit, would not arise.

( 13 ) THE only question for consideration is, whether the plaintiff could be given an opportunity to withdraw the suit under Order 23, Rule 1 c. P. C.

( 14 ) A broad contention was sought to be urged by Sri Ayyappa sastry, learned Counsel for the respondents that no permission at all can be given for withdrawal of the suit at the appellate stage.

( 15 ) I do not think, this submission can be accepted. In Ravaneswar vs. Baijnathram (I) AIR. 1915, P. C. P. 24, their Lordships of the privy Council granted permission to the plaintiffs to withdraw their claim in respect of a portion of the subject matter of the suit with liberty to institute a fresh suit in respect thereof.

( 16 ) IN Kamayya vs. Papayya (2) AIR. 1918, Madras. 1287, a Full Bench of the Madras High Court held that it was open to an appellate couit in proper cases when reversing the decree of a lower court to give the plaintiff leave to withdraw the suit with liberty to file a fresh suit.

( 17 ) THESE two decisions clearly establish that even an appellate court can give permission for withdrawal of a suit.

( 18 ) SRI Ayyappa Sastry, relies upon a recent ruling of this court delivered by Sambasiva Rao. Acting Chief Justice, and Muktadar, J. , in a. S. No. 81/1974, dated. 28-12-1976, (Narahari Nagaiah vs. K. Sivamma and 5 others) In that case, the learned Judges observed as follows: -"so far as the withdrawal of the appeal is concerned, there is no difficulty because having regard to the provisions of O-23 R. 1 c. P. C and Section 107 thereof: the appellant can be permitted to withdraw the appeal, but so far as the withdrawal of the suit is concerned, it has to be seen whether permission to withdraw the suit would result in causing prejudice to the respondents. It is not in dispute that the plaintiff can withdraw the suit before the judgment is pronounced by the trial court, but, where the trial court has passed its judgment and decree, then; the provisions of Order 23 Rule 1 clause (2) C. P C. apply and the appellate court before it grants permission to withdraw the suit has to be satisfied that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit". A Bench of this court in Masulipatnam Municpality vs. Venkatappayya (3) a I. R. 1960 A. P. 572, observed as follows:"we are inclined to share the liberal view expressed in ILR. 57 madras 892- (Seethai Achi v. Mayappa Chettiar) that without the stroke of the judicial pen under O 23 R-1 sub-rule (3) C. P. C, the suit is not terminated and that in appropriate cases the provisions Order, 1, Rule 10 or Order 22 Rule 10 C. P. C. may be applied". Referring to the aforesaid observations, the learned Judges Sambasiva rao, Acting Chief Justice and Muktadar, Judge, observed as follows:-"it would thus be seen that the case in Masulipatnam Municipality vs. Venkatappayya (3) deals more with the powers of the court under Order, 1, Rule 10 or Order. 22, Rule 10 and not so much under Order. Rule I, Sub-rule (3) Moreover, it would also be seen that what the Bench of this court observed was that a stroke of the judicial pen is necessary: in other words, permission of the Court is necessary when the plaintiff in appeal wants to withdraw his suit. The mere fact that the plaintiff wants to withdraw his suit as also the appeal would not entitle him to do so unless and until the court passes a specific order permitting the appellant to withdraw the suit. "these observations of the learned Judges show that a specific order of the court is necessary for granting permission to an appellant-plaintiff to withdraw a suit. The latest ruling of this court also takes the view that the appellate court has power to grant permission to withdraw a suit. But in the aforesaid case, their Lordships refused permission to withdraw th; suit on th? ground that certain vested rights had accrued to the defendants-respondents therein by way of the findings given by the trial court on some vital issues framed in that suit.

( 19 ) IN Suraj Pal vs. Charam Singh (4) AIR. 1973. All. 466. it was held by Asthana J. , that a plaintiff could always withdraw from a suit even at an appellate stage and the appellate court has power to allow the with drawal under Order 23 Rule 1. C. P. C. , even when the suit was dismissed by the Trial Court.

( 20 ) IN another decision of the same High Court, reported in the same volume, in Kanhaiya vs. Daneswari (5) A. I. R. 1973, All. 212 the learned Judge, Sheth, J. , held as follows: -"a plaintiff appellant has no right under order 23, rule 1 (1) CPC to withdraw the suit when rights have accrued to the respondents under the decree. Merely because an appeal has been filed it cannot be said that no rights have vested in or accrued to the respondents under the decree sought to be challenged. That decree can be enforced inspite of the pendency of the second appeal. When the appeal already stands abated with regard to one of the appellants and one of the respondents, it is not open to the appellant to take away the vested rights of the parties. In Kedar Nath v. Chandra Kiran (6) AIR 1962, All. 263, Beg. J, held as follows:"order 23, R. 1, (1) CPC does not give an absolute right to the plaintiff to withdraw the suit, at any rate at the stage of second appeal. The matter lies within the discretion of the court. Where the case is at that stage and the trial court has given a finding of fact in favour of the defendant which is binding in second appeal the court should not deprive the defendant of the plea of res judicata, by allowing the plaintiff to withdraw the suit at that stage unless the latter is able to make out some good ground for giving him the permission. "with respect I agree with the view taken by the later two rulings of the allahabad High Court which is in accordance with the view taken by the full Bench of the Madras High Court in Kamayya v. Papayya (2) AIR 1918, Madras. 1287, and of the Privy Council in Ravaneswar v. Baijanath ram (1) AIR 1915, PCP 24. The decision of the Allahabad High Court in Suraj Pal v. Charan Singh (4) AIR 1913, All. 466, was dissented from by the Division Bench of this Court in Narahari Nagaiah v. K. Sivamma and others (AS No. 81/1974, dated 28-12-1976 ). From the aforesaid rulings it follows:- 1) That the plaintiff has an absolute right to withdraw his suit before the passing of a decree under order 23 rule 1 (1) CPC. 2) That the plaintiff can also apply for withdrawal of the suit with liberty to file a fresh suit on the same cause of action under order 23, rule 1 (2) CPG provided the conditions therein are satisfied. 3) That the plaintiff can apply for withdrawal of the suit at the appellate stage; but the grant of permission will be refused if it results in prejudice or deprival of any rights which became vested or accrued to the defendants by reason of the findings recorded by the Trial Court, or the appellate court as the case may be; and 4) That the question of granting liberty to file a fresh suit on the same cause of action would not arise where permission for withdrawal is granted under order 23, rule 1 (1) CPC.

( 21 ) THE question then arises for consideration is whether on the facts and circumstances of the present case, the plaintiff can be given permission to withdraw his suit at the second appellate stage. As already observed by me, the provisions of Order 23, rule 1 (2) CPC are not applicable to the facts of the present case as the plaintiff had already instituted the suit OS 360/1976, even before filing of the present application CMP 5380/1977 under order 23 rule 1 CPC for withdrawal of the suit.

( 22 ) THE only question for consideration is whether permission could be granted under order 23 rule 1 CPC. In the instant case, the plaintiff had filed the suit for perpetual injunction restraining the defendants from interfering with his possession of the suit property. Both the courts below found that the plaintiff had failed to establish that he was in possession of the suit property on the date of suit and he was not entitled to the relief of injunction. If permission is to be given to the plaintiff at this stage to withdraw his suit, it would result in the deprival of the benefits of the findings of the courts below which had accrued to the defendants. Whether these findings in any manner preclude the plaintiff from prosecuting his suit OS 360/1976, for declaration of his title and recovery of possession of the suit property, is not a matter which arises for consideration now and 1 do not propose to express any opinion, on the said question, though a specific plea was taken in the suit itself by the defendants that the suit as framed was not maintainable, that the plaintiff was not in possession and therefore was not entitled to claim the relief of injunction, he did not take any steps to get the plaint amended and seek appropriate relief. The petitioner cannot take advantage of his own latches and seek to withdraw the suit at the second appellate stage on the ground that there was a format defect or that there are sufficient grounds for withdrawal of the suit. For all the foregoing reasons, 1 do not find any grounds for granting permission to the plaintiff to withdraw the suit with liberty to pursue the suit OS 360/76 on the file of the 6th Assistant Judge, City Civil court, Hyderabad. In the result the CMP No. 5380/1977 is dismissed with costs.