Through the medium of the petition in hand the petitioner-appellant has sought leave to withdraw application under section 34 of the Arbitration Act, decided by the Trial Court by virtue of an order dated 20.2.1997, which stands challenged before this Court in an appeal by the petitioner- appellant. 2. The respondent has resisted the petition by filing written objections where it is, inter-alia, stated that the learned Trial Court while deciding the application under section 34 of the Arbitration Act, 1940 (hereinafter referred to as the Act), filed by the defendant, present appellant - petitioner, for the stay of the suit instituted by the respondent-plaintiff before it, has held that in the present suit the whole contract is sought to be avoided on the ground of fraud, undue influence and coercion and clause 22 of the agreement is not wide enough to empower the Arbitrator to arbitrate on the validity also. Therefore, regard being had to the pleadings of the plaint and other material on the file application of the defendant is not accepted, and that withdrawal of the application under section 34 of the Act shall result in setting aside the said finding of the Trial Court. 3. Heard Mr. Parmodh Kohli, Sr. Advocate appearing on behalf of the petitioner-appellant and Mr.S.D.Sharma, Sr. Advocate appearing on behalf of the respondent-non-applicant. 4. It appears that a suit for declaration was filed by the plaintiff -respondent to the effect that he is tenant of shop No. 3 presently existing at Adh-kanwari which was leased out to him in lieu of pre-existing shop No. 3 at Adh-Kanwari, which was forcibly demolished by the defendant, appellant-petitioner during the night intervening 9/10.9.1994; with a further declaration to the effect that any document prepared by the defendant on the basis of typed paper on which signature of the plaintiff have been obtained in September, 1994, under coercion and misrepresentation does not effect the leasehold rights of the plaintiff in respect of the presently existing shop No. 3 at Adh- Kanwari together with consequential relief of decree for permanent prohibitory injunction restraining the defendant from forcibly evicting the plaintiff from the aforesaid shop, other than in due course of law. 5. 5. It further appears that the petitioner-appellant filed an application under section 34 of the Act for staying of the proceedings in the suit, maintaining therein, inter alia, that the respondent-plaintiff has executed a licence deed with respect to shop in question and the controversy sought to be raised arises out of the terms and conditions of the said deed; and that in case any dispute relating to the interpretation of the stipulations arises out of the deed the same is required to be referred to the Arbitrator in terms of clause 22 of the licence deed. This application came to be dismissed by the Trial Court. This order of the learned Trial Court came to be challenged by the petitioner-appellant before this Court in a Civil Misc. Appeal. Now, as Indicated, through the medium of petition in hand, the petitioner-appellant has sought the leave to withdraw said application under section 34 of the Act filed before the Trial Court. 6. Order 23 R (1) C.P.C. gives power to the court to allow the plaintiff, at any time, to withdraw or abandon a suit as against all or any of the defendants unconditionally. But if any vested or subsisting right comes into existence before the prayer of abandonment or withdrawal of the suit is made, the Court cannot allow such withdrawal or abandonment. An appeal under section 141-C.P. C. is a continuation of the suit, therefore, the Appellate Court also, under section 107(2) C.P.C. has the power to allow the plaintiff- appellant to abandon his suit or the petition, whatsoever the case may be, unconditionally. However, at the cost of repetition it is pointed out that the court is not bound to grant such withdrawal or abandonment of the suit, as the case may be, when any vested or substantive right of the other party is adversely effected. 7. Examining the case in hand in the background of this legal position, the petitioner-appellant, though in para 2 of the petition has averred "that the appellant herein craves the leave of this Honble Court to withdraw said application under section 34 of the Arb. Act, 1940, with a liberty to pursue the appropriate remedy as available under law", but in the prayer clause the petitioner-appellant has sought simple permission to withdraw the said application with a further prayer that the appeal may also be disposed of accordingly. Act, 1940, with a liberty to pursue the appropriate remedy as available under law", but in the prayer clause the petitioner-appellant has sought simple permission to withdraw the said application with a further prayer that the appeal may also be disposed of accordingly. Therefore, from the perusal of this prayer clause of this petition it is sufficiently manifest that the petitioner-appellant has sought leave to withdraw the application under section 34, out of which the appeal has arisen, unconditionally. 8. Perusal of the order impugned in the appeal, recorded by the Trial Court, whereby he came to dismiss the petition under section 34 of the Act, after holding "...... in the present suit whole contract is sought to be avoided on the ground of fraud, undue influence and coercion and under clause 22 referred to above and the agreement is not wide enough to empower the Arbitrator to arbitrate on its validity also. Therefore, regard being had to the pleadings of the plaint and the material on the file the application of the defendant is not accepted ......" does not mean that fraud, undue influence or coercion on the part of the defendant as alleged by the plaintiff in the suit is proved. It only says that the arbitration clause is not wide enough to include the very validity of the contract on the grounds of fraud or misrepresentation. Therefore by virtue of this impugned judgment, no right, whatsoever, stands vested or accrued to the plaintiff-respondent. The authorities cited by learned counsel for the respondent- plaintiff, reported in AIR 1973 Allahabad 212 and AIR 1975 J&K 89 are distinguishable and cannot be made applicable to the facts of the present case. 9. Viewed thus, this petition is allowed, leave to withdraw application under section 34 of the Act filed by the defendant-petitioner in the suit, pending decision before the Trial Court between the parties, is granted in favour of the petitioner-appellant. As a consequence of which the appeal is also dismissed with costs, as the same does not survive decision.