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PETITIONER: JAGTAR SINGH

       Vs.

RESPONDENT: PARGAT SINGH & ORS

DATE OF JUDGMENT:       27/11/1996

BENCH: K. RAMASWAMY, G. T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This special  leave petition  arises from  the order of the High Court of Punjab & Haryana made, on July 19, 1996 in Civil Revision NO. 4233/95.      Respondent No. 1, elder brother of the petitioner filed the suit  for declaration  against the  petitioner and three brothers that the decree dated May 4, 1990 was null and void which was  decreed by  the Subordinate  Judge, Hoshiarpur on September 29,  1993. The  petitioner has  filed an appeal in the Court  of the Additional District Judge, Hoshiarpur. The counsel made  a statement  on September  15, 1995  that  the petitioner did not intend to proceed with the appeal. On the basis thereof,  the appeal  was dismissed  as withdrawn. The petitioner challenged  the order  of the  appellate Court in the revision.  The High  Court confirmed  the  same  in  the impugned order. Thus, this special leave petition.      The learned  counsel for  the petitioner  has contended that the  petitioner  had  not  authorised  the  counsel  to withdraw the  appeal. The  Court after  admitting the appeal has no  power to  dismiss the  same as  withdrawn except  to decide the  matter on merits considering the legality of the reasoning of  the trial  Court and  the  conclusions  either agreeing or  disagreeing with  it. We  find no  force in the contention. Order  III, Rule  4, CPC empowers the counsel to continue on  record until  the proceedings  in the  suit are duly terminated. The counsel, therefore, has power to make a statement on  instructions from  the party  to withdraw  the appeal. The  question then is: whether the court is required to pass  a reasoned  order  on  merits  against  the  decree appealed from  the decision  of the Court of the Subordinate Judge? Order  XXIII, Rule  1(1) and  (4) give  power to  the party to  abandon the  claim filed  in the suit wholly or in part. By  operation of Section 107(2) of the CPC, it equally applies to  the appeal  and  the  appellate  Court  has  co- extensive power  to permit  the appellant  to  give  up  his appeal against  the respondent  either as a whole or part of the relief. As a consequence, though the appeal was admitted under Order  XXXXI, Rule  9, necessarily  the Court  has the power to  dismiss the appeal as withdrawn without going into the merits  of the  matter and  deciding it  under  Rule  11

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thereof.      Accordingly, we  hold that  the  action  taken  by  the counsel is consistent with the power he had under Order III, Rule 4,  CPC, If  really the  counsel has  not acted  in the interest of  the party  or against  the instructions  of the party, the  necessary remedy  is elsewhere and the procedure adopted by the Court below is consistent with the provisions of CPC. We do not find any illegality in the order passed by the Additional District Judge as confirmed by the High Court in the revision.      JThe special leave petition is accordingly dismissed giving liberty to the petitioner to proceed in according with law.