JUDGMENT 1. - This order will dispose of the two applications filed by Ramchandra on January 5, 1933 for withdrawal of the appeal and February 28, 1983 for withdrawal of the withdrawal application. The second application dated February 28, 1983 is supported by affidavit of the appellant. A reply has been filed to that application on behalf of respondent No. 1 Pokarram on March 21, 1983 contesting the second application on the ground that no withdrawal of the withdrawal application is permissible in law. 2. The most important and interesting question of law which arises in this appeal is whether it is permissible to order, withdrawal of the withdrawal application of the appeal filed by the appellant on February 28, 1983. 3. The facts for the purpose of answering the aforesaid question may be noticed. 4. An election petition under section 36 of the Rajasthan Municipalities Act (No. 38 of 1959) (for short the Act' herein) was filed by the appellant against the respondents. Respondent No. 1 is the elected member and respondents No. 2 to 4 are defeated candidates and respondent No. 5 is returning officer, Sojat Municipal elections, which were held on February 19, 1982. After trial, the learned Munsif, Sojat by his judgment dated October 23, 1982 dismissed the election petition and hell that respondent No. 1 Pokar Ram is a properly elected member of Ward No. 16 of the Municipal Board, Sojat. An appeal was filed by the appellant under section 46 of the Act on November 26, 1983 questioning the correctness of the judgment dated October 29, 1982 of the Munsif dismissing the election petition. On January 5, 1983, on behalf of the appellant, an application was filed praying therein that the appellant may be allowed to withdraw the appeal. Thereafter, an application under Order 1, Rule 10 and section 151 Civil Procedure Code read with section 46 of the Act was submitted on behalf of respondent No. 3 Hariram, the defeated candidate on January 6, 1983 that he may be transposed as the appellant in place of respondent No. 3. The Court by its order dated January 30, 1983 ordered for the issuance of the notice on both the aforesaid applications to respondent No. 2, 4 and 5. The Court by its order dated January 30, 1983 ordered for the issuance of the notice on both the aforesaid applications to respondent No. 2, 4 and 5. On February 28, 1983, the appellant moved an application that he does not want to withdraw the appeal but wants to prosecute it further and therefore, he may be allowed to withdraw the withdrawal application. On behalf of respondent No. 1, reply was filed contesting the application for withdrawal of the application for withdrawal of the appeal on various grounds which will be dealt with hereunder at the appropriate place. 5. Mr. K. C. Saindaria, learned counsel for the appellant contended that despite the fact that the appellant has moved the application for withdrawal of the appeal filed by him on January 5, 1983 and since no order has been passed on that application, he is entitled to withdraw the application and, therefore, the appeal should be proceeded with. Mr. B. M. Singhvi, learned counsel for it respondent No. 3 supported Mr. K. C. Samdaria, learned counsel for the appellant Mr. R. Mehta, learned counsel for respondent No. 1 pressed for my consideration that having filed the application for withdrawal of the appeal, the appellant is not entitled in law to withdraw the withdrawal application or the appeal, for, so far as the appellant is concerned, the appeal stands withdrawn as the application filed for withdrawal of the appeal is irrevocable and that it is not necessary for the withdrawal being complete to pass all order on it. 6. I have given my most thoughtful and careful consideration to the rival contentions raised by the learned counsel for the parties. 7. It may be mentioned that the procedure for trial of the election petition has been provided in section 41 of the Act. Sub-section (3) of section 41 of the Act is as follows:- X X X X X X Sub-sec.(2) of section 46 runs as under : X X X X X X ORDER23, Rule 1 Civil Procedure Code is as follows X X X X X X It is thus clear that the appellate Court has been empowered to permit withdrawal of the appeal or the proceedings as the case may be. There is sharp cleavage of judicial opinion on the question with which I am concerned. There is sharp cleavage of judicial opinion on the question with which I am concerned. I would like to notice the authorities bearing on the question whether it is open to the appellant to withdraw the application for withdrawal of the appeal after it has been filed in Court until the order is passed on that application by the Court allowing the withdrawal. 8. In (1) Lakhmana v. Alwar Ayyangar (AIR 1923 Mad. 246), it was observed as under : "Taking the withdrawal petition as conditional on the passing of an older regarding costs to the effect specified in it. I must hold that unless and until the Court signified its intention to pass such an order, the petition could not operate as a termination of the suit. That being so, and the suit still being pending on the date of the petition withdrawing the withdrawal, there was no obstacle to the lower Court, in the exercise of its discretion, dealing with the latter petition and dismissing the former and continuing the trial No. ground for revision has been made out. The revision petition, therefore, must be dismissed with costs." It was observed in (2) Seethai Achi v. Meyappa ( AIR 1934 Mad. 337 ), by Pandrang Rao, J. as under : "It is, in my opinion, open to the Court to consider and decide any objections that may be made to the withdrawal of the suit before passing orders on the application to withdrawal." It was held in (3) Jaimala Kunwar v. Collector of Saharanpur (AIR 1934 All. 4), by a Division Bench that the moment an application is made by the plaintiff to withdraw the suit, the suit does not cease to exist in the eye of the law till an order is passed by the Court and when the Court comes to pass an order, it can pass an order not only on the application of the plaintiff, but also on the application of persons who are interested in the suit and who desire that they should be allowed to conduct the suit. 9. Dixit and Vyas, JJ in (4) Yashwant Goverdhan v. Toteram Vasu ( AIR 1958 Bom. 9. Dixit and Vyas, JJ in (4) Yashwant Goverdhan v. Toteram Vasu ( AIR 1958 Bom. 28 ), held : "If therefore, the plaintiff has a right to withdraw his suit he has equally, a right to withdraw his withdrawal and so long as the Court has not made an order, showing that the withdrawal has become complete or effective, there is always a locus paenitentiae for the plaintiff to withdraw his withdrawal. In so holding, there is no injustice to the defendant. If the defendant cannot compel a plaintiff to continue his suit, the defendant cannot, equally, compel a plaintiff not to withdraw his withdrawal. We think, therefore, that in law, the true position is that it is open to a plaintiff to withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by an order of the Court." It was held in (5) Masulipatam Municipality v. Venkatappayya ( AIR 1960 A.P. 572 ) as under : "It is clear law that 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 conferred in favour of the defendants in the preliminary decree would be rendered nugatory if the suit should simply be dismissed. Partnership suits and suits for account in which preliminary decree are passed also stand on the same footing. We are inclined to share the liberal view expressed in ILR 37 Mad. 852 (AIR 1934: Mad 337) that without the stroke of the judicial pen under Order 23 Rule 1 sub-rule (3) Civil Procedure Code , the suit is not terminated and that in appropriate cases, the provisions of Order 1 Rule 10 or Order 22 Rule 10 Civil Procedure Code may be applied." In (6) Badrinarayan v. U.O.I. ( AIR 1962 Pat. 428 ), it was ruled as under:- "The application filed by the plaintiffs was merely an application for dismissing the suit without adjudication which, in other words, could mean - only an application for withdrawal of the suit under the provisions of Order 23, Rule I, of the Code of Civil Procedure. It is not disputed that a withdrawal application could be withdrawn by a party filing the same. It is not disputed that a withdrawal application could be withdrawn by a party filing the same. Therefore in the present case, in my opinion, the plaintiffs were perfectly entitled in law to withdraw their application field on the 17th of March, 1959, and the lower appellate Court, therefore, rightly allowed the application of the plaintiffs filed on the 13th of April, 1959 for withdrawing their previous application." In (7) Thomas v. Skarlah ( AIR 1973 Ker. 140 ), it was observed as under:- "It appears to me that though no order on an application for withdrawal under Order 23, Rule 1 (1) is called for, nevertheless withdrawal becomes irrevocable only when the Court has occasion to exercise its mind on the factum of withdrawal brought to its notice. After that moment, it is not open to the party to back out of it. Until that is brought to its notice, the withdrawal has not been acted upon. It is just as good or as bad as a withdrawal in the contemplation of a party. I think this is sufficient to answer the decision of the Allahabad High Court. I do not want to go into it in detail because as I said, on the facts of this case the objection of the revision petitioner at any rate should have been considered to be of very little substance." In (8) Feroj & Co. v. U.O I. (AIR 1975 J. & K. 89), it was laid down that a plaintiff can withdraw his suit or abandon a portion of his claim under O. XXIII r. I only when the suit exists and that where the suit has ceased to exist on account of its dismissal, there is nothing left which the plaintiff may withdraw or abandon until the dismissal is set aside and the suit restored. On facts, Feroz & Co.'s case (8) is distinguishable but it may, however, be mentioned that Jaimala Kunwar's ease (3), Secthai Achi's case (2) and Yashwant Goverdhan's case (4) were followed. 10. Here it is necessary to notice (9) Raisa Sultana v. Abdul Qadir ( AIR 1966 All. 318 ), on which strong reliance was placed by the learned counsel for respondent No. 1. 10. Here it is necessary to notice (9) Raisa Sultana v. Abdul Qadir ( AIR 1966 All. 318 ), on which strong reliance was placed by the learned counsel for respondent No. 1. It was observed as under : "Since withdrawing a suit is a unilateral act to be done by the plaintiff, requires no permission or order of the Court and is not subject to any condition, it becomes effective is soon as it is done just as a compromise does. Any information of it given to the Court is no part of it, so also any order passed by the Court on receiving the information. The act is like a point and not continuous like a point having a beginning and an end. Either it is done or not done, there is nothing like its being done incompletely or ineffectively. The consequence of an act of withdrawal is that the plaintiff ceases to be a plaintiff before the Court. If he is the only plaintiff and withdraws the whole of the suit, the suit comes to an end and nothing remain: pending before the Court; if he is only one of several plaintiffs, he ceases to be a part and the suit of only the other plaintiffs continues. If he withdraws only a part of the suit, that part goes out of jurisdiction of the Court and it is left with only the other part." It was further laid down therein as follows : "The right to withdraw has been expressly conferred by rule 1(1); there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that the right to withdraw includes in itself a right to revoke the withdrawal." 11. Amongst others, Yashwant Goverdhan's case (4) and Lakhmana's case (1) were dissented from. Raisa Sultan's case (9) was considered in Thomas's case (7). The reasoning given in Raisa Sultana's case (9) has been considered in the extract excerpted above from Thomas s case (7), with which, I, respectfully, agree, I have not been able to persuade myself to subscribe to the view taken in Raisa Sultana's case (9) and with utmost deference, express my dissent. I respectfully follow the view taken in Lakhnrana's case (1), Yashwant Goverdhan's case (4), Seethai Achi's case i2) Jaimala Kunwar's case (3), Masulipatarn. I respectfully follow the view taken in Lakhnrana's case (1), Yashwant Goverdhan's case (4), Seethai Achi's case i2) Jaimala Kunwar's case (3), Masulipatarn. Municipality's case (5), Badrinaiayan's case (6) an3 Thomas's case (7) and hold that until and unless the order is passed by the Court seized of the mister of an application for withdrawal of the suit or the appeal as the case may be it does not become effective and operative and that the suit or appeal remains pending until orders are passed on such application. It is always open to a party to withdraw the application for withdrawal of the suit or appeal, as the case may be. As the appellant has filed an application to withdraw the withdrawal application on February 28, 1983, the appeal cannot be dismissed as withdrawn in pursuance of the withdrawal application dated January 6, 1983. 12. The applications dated January 6, 1983 and February 28, 1983 are, accordingly, disposed of as indicated above. *******