SAO No.5 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. SAO No.5 of 2008 Date of Decision: 5.11.2008 Sunder Singh .....Appellant Vs. Ram Kishore and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.B.S. Bedi, Advocate for the appellant. Mr.Gaurav Mohunta, Advocate for the respondents. .... RAJIVE BHALLA, J (Oral) The appellant challenges the legality of the order dated 11.1.2008, passed by the Additional District Judge, Karnal, setting aside the judgement and decree dated 22.1.2007 passed by the Civil Judge (Junior Division), Karnal and remitting the matter for adjudication afresh, after recording a finding on issue no.1. A perusal of the judgement recorded by the trial Court discloses that the plaintiff-appellant filed an application under Order XXIII Rule 1 of the C.P.C., giving up the relief for rendition of accounts. The trial Court accepted this prayer and held that as the relief for rendition of accounts had been given up, issue no.1 did not require adjudication. The first appellate Court, however, held that though the plaintiff-appellant had given up his prayer for rendition of accounts, the trial Court was required to return a finding in respect thereof and, therefore, remanded the case for a fresh SAO No.5 of 2008 2 adjudication. I have considered the arguments addressed by counsel for the parties and perused the order passed by the first appellate Court. A party may, at any stage of a suit give up a relief or a prayer. Order XXIII Rules 1 and 2 of the C.P.C. read as follows : XXIII.Withdrawal and adjustment of suits 1. Withdrawal of suit or abandonment of part of claim – (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. 2. An application for leave under the proviso to sub- rule(1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.” It would necessarily follow in view of the provisions of Order 23 Rules 1 and 2 of the Code that a relief or a claim once given up, would not require adjudication, even if an issue has been cast in respect thereof. SAO No.5 of 2008 3 As the applicant filed an application under Order 23 Rule 1 of the Code giving up the relief for rendition of accounts, the trial Court rightly held that issue no.1 did not require adjudication. The first appellate Court committed an error in directing the trial Court to decide issue no.1, as the claim underlying issue no.1 stood withdrawn. In view of what has been stated herein above, the appeal is allowed and the order dated 11.1.2008, passed by the first appellate Court is set aside. The appeal is restored to the Court of Additional District Judge, Karnal, for adjudication afresh in accordance with law. Parties are directed to appear before the Additional District Judge, Karnal on 8.12.2008. 5.11.2008 (RAJIVE BHALLA) GS JUDGE