Appeal No 897 of 1964
887 Appeal by special leave from the judgment and order dated November 14 1961 of the Allahabad High Court in Civil Revi sion No 686 of 1953
Bishan Narain and M I Khowaja for the appellant
Niren De Addl
Solicitor General M V Goswami and Yogeshawr Parshad for the respondent
The Judgment of the Court was delivered by Bhargava J
The respondent firm K B Bass  Co instituted a suit on 13th April 1951 for rendition of accounts against the appellant firm Messrs Hulas Rai Baij Nath alleging that the appellant was the commission agent of the respondent and that the accounts between respondent as the principal and appellant as the agent had not been settled since the dealings be an in the year 1941 onwards
Tentatively a sum of Rs 2100 was claimed in the plaint
In the written statement filed on behalf of the appellant the suit was contested on various grounds but for the purposes of this appeal we need mention the pleas taken in only two paragraphs 8 and I 1
In paragraph 8 it was pleaded that one Lala Shiva Charan a partner of the respondent firm had come with a Munim in the month of Agahan last and account
 were fully explained to him as worked out upto Kartik Sudi 15
Sambat 2007
In that statement of account a sum of Rs 10677 14 3 was found due to the appellant from the respondent and the representatives of the respondent asked for two months  time for making the payment of the amount found due
It was thus urged that there was no occasion for rendition of accounts and the plaintiff s suit was not fit to proceed according to law
In paragraph I 1 the appellant pleaded that if in the opinion of the court the court has jurisdiction to try the suit and it is necessary to tender the accounts it is equitable that a decree for the amount which may be found due to the contesting defendant after rendition of accounts together with costs and interest be passed in favour of the contesting defendant after necessary court fee being realized from the defendant
 A number of issues were framed and the case was taken up for recording of evidence on several dates of hearing
Some of the issues were even given up during the trial
Ultimately on 5th May 1953 after a considerable amount of evidence had been recorded an application was presented on behalf of the plaintiff respondent for withdrawal of the suit
The round given for withdrawal was that the respondent firm was in the charge of one Bhagwat Charan who had colluded with the appellant and litigation was going on between the respondent and Bhagwat Charan for effecting partition of the business
Consequently it was difficult to prosecute the suit No prayer was made for permission to file a fresh suit
The appellant filed an application objecting to this application for with
L9Sup
CI67 13 888 drawal
The main ground taken for contesting this application for withdrawal was that in a suit of this nature it is permissible to pass a decree in favour of the defendant if on accounting something is found due to him against the plaintiff and it followed that if the defendant paid court fee on the amount which was found due to him from the plaintiff his position became that of A plaintiff himself and he became entitled to have the accounting done and to obtain a decree
It was urged that the plaintiff s game in withdrawing the suit after protracted duration and considerable expenditure on the part of the defendant was to defeat this right of the defendant
The trial Court held that the right of the plaintiff in this suit to withdraw under 0 23 r 1 of the Code of Civil Procedure was inherent and such a right could be exercised at any time before judgment
All that the defendant could claim was an order for costs in his favour
The Court therefore dismissed the suit awarding costs of the suit to the appellant
The appellant filed a revision in the High Court of Allahabad against this order with a prayer that the High Court may set aside the order of the trial Court and remand the suit for trial according to law
The High Court dismissed the application for revision and the appellant has now come tip to this Court in this appeal by special leave
The short question that in these circumstances falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May 1953 at the stage when issues had been framed and some evidence had been recorded but no preliminary decree for rendition of accounts had yet been passed
The language of 023 r 1
sub r
I  CPC gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is  ought under sub r
2 of that Rule the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under sub r 3 of that Rule
There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel tile plaintiff to proceed with it
It is of course possible that different considerations may arise where a set off may have been claimed under 0 8 CPC or a counterclaim may have been filed if permissible by the procedural law applicable to the proceedings governing the suit
In the present case
the pleadings in paragraphs 8 and II of the written statement
mentioned above clearly did not amount to a claim for set off
Further there could be no counterclaim because no provision is shown under which a counter claim could have been filed in the trial Court in such a suit
There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of account and in fact the appellant 889 was still contending that there could be no rendition of accounts in the suit because accounts had already been settled
Even in para 11 the only claim put forward was that in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant a decree may be passed in favour of the appellant for that amount
In this paragraph also the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed
Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts no Such right can possibly be held to exist before the Court passed preliminary decree for rendition of accounts
It is to be noted that in the case of a suit between principal and agent it is the principal alone who has normally the right to claim rendition of accounts from the agent
The agent cannot ordinarily claim a decree for rendition of accounts from the principal and in fact in the suit the appellant who was the agent of the respondent did not claim any rendition of accounts from the respondent
In these circumstances at the stage of withdrawal of the suit no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit
It is unnecessary for us to express my opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested right may have accrued in the suit in favour of the defendant
On the facts of this case
it is clear that the right of the plaintiff to withdraw the suit not at all affected by any vested right existing in favour of the appellant and consequently the order passed by the trial Court was perfectly justified
On behalf of the appellant reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi vs Meyappa Chettiar and Others 1 where the Court held Ordinarily when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of theclaim by the plaintiff it will simply say that the suit is dismissed as the plaintiff has withdrawn from it
An order as to costs will also be passed
But several exceptions have been recognised to this general rule n suits for partition if a preliminary
decree is passed declaring and defining the shares of the several parties the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed
So also in partnership suits and suits for 890 accounts where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit
 We do not think as urged by learned counsel that the learned Judges of the Madras High Court were laying down the principle that in a suit for accounts a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit
In the context in which that Court expressed its opinion about suits for accounts it clearly intended to lay down that the dismissal of the suit on plaintiff s withdrawal is not to be necessarily permitted if the defendant has become entitled to a relief in his favour
But such it right if at all can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed
In fact in mentioning suits for partition and suits for accounts the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties
In any case we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit
The appeal therefore fails and is dismissed with costs


Summary:
In a suit for rendition of accounts the defendant pleaded that accounts had been settled and he was to get certain money from the plaintiff that there could be no rendition of accounts and that if the court concluded that rendition of account was necessary a decree for the amount which may be found due to the defendant with costs and interest may be passed in favour of the defendant after necessary court fee was realised from the defendant
While no preliminary decree for rendition of accounts had been passed and in fact the defendant was still contending that there could be no rendition of accounts in the suit
the plaintiff applied for withdrawal of the suit
The defendant opposed the withdraw claiming that in a suit of this nature his position became that of a plaintiff and he became entitled to have the accounting done and to obtain a decree and the withdrawal after protracted duration was to defeat this right of the defendant
The trial Court allowed the withdrawal which was upheld by the High Court
In appeal by the defendant this Court HELD  At the stage of withdrawal of the suit no vested right in favour of the defendant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit
There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it
It is of course possible that different considerations may arise where a set off may have been claimed under 08 CPC or a counter claim may have been filed if permissible by the procedural law applicable to proceedings governing the suit
In the present case the pleadings did not amount to a claim for set off
Even if it be assumed that the defendant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts
In the case of a suit between principal and agent it is the principal alone who has normally the right to claim rendition of accounts from the agent
The agent cannot ordinarily claim a decree for rendition of accounts from the principal and in fact in the suit the defendant who was the agent of the respondent did not claim any rendition of accounts from the plaintiff
888F H 889B D Seethai Achi vs Meyappa Chettiar and Others AIR 1934 Mad 337
refered to