JUDGMENT Honble V.C. Misra, J.—Heard S/Sri A.K. Upadhyay learned Counsel for the appellant, Dr. H.N. Tripathi learned Counsel for the respondent-defendant No. 2 and R.N. Singh Senior Advocate, G.K. Malviya and A.K. Rai Advocates on behalf of the applicants. 2. The present Second Appeal was filed on 20.5.1997 thereafter the sole appellant Smt. Shyama Devi moved an Application No. 192395 of 2006 dated 13.9.2006 with a prayer to dismiss her present second appeal as withdrawn/not pressed through her learned Counsel Sri A.K. Upadhyay. This withdrawal application is supported by an affidavit duly sworn by the appellant. Before the said withdrawal application could be disposed off one Shiva Kant Mishra moved an Impleadment Application No. 2216517 of 2006 dated 11.10.2006 with a prayer to be impleaded as appellant-proposed plaintiff through his learned Counsel supported by an affidavit sworn by him. Another application No. 89125 of 2007 dated 4.4.2007 has been moved by one Girish Singh for being impleaded as appellant-proposed plaintiff through Counsel supported by an affidavit sworn by him. Dr. H.N. Tripathi, Advocate learned Counsel for the respondent No. 2 has submitted that he has no objection to the said withdrawal application dated 13.9.2006 moved by the sole appellant Smt. Shyama Devi seeking dismissal of the present Second Appeal. Learned Counsel for the applicant Shiv Kant Mishra and Girish Singh seeking impleadment as appellants-proposed plaintiffs have strongly objected to the application of the appellant for dismissing the second appeal as not pressed/withdrawn. 3. Being aggrieved, the appellant-plaintiff filed the present second appeal. During pendency of the appeal, the sole plaintiff-appellant Ram Palat Chaturvedi died on 29.3.2002. The widow of Ram Palat Chaturvedi being sole heir and legal representative was substituted in the present Second Appeal as the sole appellant. It is she who has subsequently moved an application for dismissal of the Second Appeal as withdrawn/not pressed. Shiv Kant Misra applicant has moved this application claiming himself as present Manager/Managing Trustee of the trust whereas Girish Singh has sought impleadment as one of the trustees and a beneficiaries of the trust being devoted worshiper of the idol of Shri Durgaji Mandir. 4. The facts of the case in brief are that one Sri Chandrabali Shastri Brahamchari-defendant No. 1 founded a trust in the name of Shri Durgaji Mandir Trust to establish an Alopathy Medical College in the District Azamgarh. 4. The facts of the case in brief are that one Sri Chandrabali Shastri Brahamchari-defendant No. 1 founded a trust in the name of Shri Durgaji Mandir Trust to establish an Alopathy Medical College in the District Azamgarh. He executed a lease deed of 40 bighas of land of the trust on 29.3.1996 in favour of defendant No. 2-All India Children Care Educational Development Society, Azamgarh for establishing a Medical College. The possession was given and defendant No. 2 constructed the Medical College building. One Sri Ram Palat Chaturvedi who was the real younger brother of defendant No. 1 filed an Original Suit No. 128 of 1996. The said suit was filed in the name of "Ram Palat Chaturvedi aged about 79 years son of late Sri Bharat Chaturvedi, Manager and Trustee Shri Durgaji Mandir Trust situated at Chandeshwar Post Chandeshwar District Azamgarh" seeking relief for restraining the defendants from not interfering in the peaceful possession of the plaintiff-appellant and for further restraint by not making any further construction over the disputed property and that the above said lease be cancelled. The suit was dismissed by the Civil Judge, Azamgarh being not maintainable. Civil Appeal No. 15 of 1997 was also dismissed by the IIIrd Additional District Judge. 5. The contention of the applicants seeking impleadment as appellants-proposed plaintiffs is on the basis that the trust being a public trust they should be allowed to watch and safeguard its interest in place of the present appellant who being an old person and failing to discharge the duties and responsibilities of the Managing trustees on account of old age had abdicated her post and therefore she should not be allowed to withdraw the appeal. 6. The learned Counsel for the appellant in support of the withdrawal application has submitted that in view of the provisions of Order 23 Rule 1 of the Code of Civil Procedure (1908) the plaintiff has a right to withdraw his suit at any stage and the appeal is the continuation of the proceedings and it is well established that the law provides an absolute right to the plaintiff to withdraw his suit or abandoned a part of his claim. It has been further submitted that the original suit was filed by Ram Palat Chaturvedi in his personal capacity addressing himself as a Manager/Managing trustee of the trust seeking relief for being declared as such and the suit was dismissed vide Judgment and Order dated 16.1.1997 wherein it was held that since no right, title or interest of his was found in the trust therefore, he could not be declared as Manager/Managing trustee. The lower appellate Court has also held that the plaintiff had failed to establish his locus standi to bring the suit and he was not entitled to any relief sought for. More so, in the present appeal since Smt. Shyama Devi appellant has been substituted as legal heir of Ram Palat Chaturvedi and as the suit had not been filed on behalf of the trust no person claiming on behalf of the trust can seek impleadment in such capacity and thus both Shiva Kant Misra and Girish Singh have no locus standi to be impleaded as appellant-proposed plaintiff and also oppose to the withdrawal of the appeal by the appellant. 7. Learned Counsel for the appellant also in support of the above said withdrawal application has relied upon the following decisions : (i) AIR 1966 All 318 , (ii) AIR 1968 SC 111 , (iii) AIR 1971 All 41 , (iv) 2004 (2) AWC 1636 . 8. The applicants seeking impleadment have submitted that, the plaintiff had filed a suit with the allegation that he was the founder member of the Institution and being younger brother of defendant No. 1 had been unanimously appointed by all the trustees as Manager. The defendants contested the claim of the plaintiff inter alia on the ground that the trust being a public trust the suit was barred under Section 92 of the Code of Civil Procedure and the plaintiff had no right to sue. The trial Court framed several issues and found that the suit was barred by the provisions of Section 92 of the Code of Civil Procedure, 1908 and held that the plaintiff was not the Manager hence, the suit could not be decreed. The trial Court framed several issues and found that the suit was barred by the provisions of Section 92 of the Code of Civil Procedure, 1908 and held that the plaintiff was not the Manager hence, the suit could not be decreed. The lower appellate Court had set aside the findings of the trial Court almost on all the issues except maintainability of the suit on the ground that the plaintiff could not maintain the suit on account of the matter that he was neither a de facto trustee nor a trustee hence, he was rightly not granted any relief. It has been further submitted that since the Courts below have recorded finding of fact that the trust in question is a public trust and not a private trust. Smt. Shyama Devi the sole appellant could not withdraw the second appeal through her application on her own without there being any valid resolution passed by the Board of Trustee of the trust in question. In support of their contention the learned Counsel has relied upon AIR 1967 SC 1044 and AIR 1990 SC 444 to the effect that in a public trust worshipper or beneficiary has sufficient locus to sue on behalf of a public trust and the Courts below failed to consider that it had been clearly asserted in the pleadings that the plaintiff-appellant was worshipper of Devi Durgaji D.T. and once the post of the trust was accepted as a public trust, the plaintiff or his legal representatives could not either compromise, surrender or abandoned the claim being deemed to be representative of the public and the decision had to be taken by all the trustees together and there being no resolution of the trustees authorising the appellant to withdraw in absence of the same she cannot and if so allowed to jeopardize the interest of the public at large and that it is the duty of the Court to safeguard the interest of the beneficiaries, worshipper and public at large and thus the application of withdrawal or dismissal of the appeal as withdrawn/not pressed deserves to be dismissed and the application filed by the beneficiaries, worshipper, devotees and trustees seeking impleadment as appellants deserves to be allowed. 9. I have heard the learned Counsel for the parties at length and perused the record. 9. I have heard the learned Counsel for the parties at length and perused the record. It is apparent that the said suit had not been filed by the Trust through its Manager but it was Ram Palat Chaturvedi who filed the suit in his individual capacity claiming himself as Manager/Trustee. 10. The said suit was dismissed by the trial Court in terms of the provisions of Section 92 of the Code of Civil Procedure, 1908. The appellate Court also held that the suit of the plaintiff was not maintainable as he was neither a de facto trustee nor a trustee and, therefore, he was rightly not granted any relief sought for in the plaint. From the perusal of the record, it is also found that in the suit no permission has been sought for from the learned District Judge under Section 92 of the Code of Civil Procedure, 1908 and therefore, it could not be treated as a suit filed by or on behalf of a trust. The present appeal has also been filed by him in his individual capacity. The present appellant Smt. Shyama Devi has been substituted as the wife of Ram Palat Chaturvedi (deceased-sole appellant) thus, it is clear that the Trust did not file the present second appeal. It has also been stated by the learned Counsel for the applicant seeking impleadment that the present trustees of the trust have already filed a civil suit before the trial Court in respect with the dispute regarding properties of the trust and its alienation. The trust or any person allegedly on behalf of the trust cannot seek impleadment in the present appeal in such capacity more so, since it was not a party before the Courts below and the findings of fact stand concluded by the Courts below in respect with the status of the plaintiff being not a de facto trustee or a trustee. The impleadment applications are not maintainable. 11. Under the provisions of Order 23 Rule-1(1) of the Code of Civil Procedure, it is settled law that the plaintiff having paid the Court fees in a suit is dominus litus. The impleadment applications are not maintainable. 11. Under the provisions of Order 23 Rule-1(1) of the Code of Civil Procedure, it is settled law that the plaintiff having paid the Court fees in a suit is dominus litus. The plaintiff has an absolute right to withdraw his suit at any time before the delivery of the Judgment and does not require any permission or order of the Court nor is subject to any condition since withdrawing the suit is a unilateral act on the part of the plaintiff and the withdrawal becomes effective as soon as it is moved, the Court may pass certain orders on the withdrawal application but they are not to give affect to the withdrawal but to give affect to the consequences arising out of the withdrawal as has been held by the Division Bench of this Court in the case of Sheikh Khalikuzzama (D) through L.Rs. and others v. Sheikh Akhtaruzzaman (D) and others, 2004 (2) AWC 1636 and in the earlier Division Bench decision in the case of Smt. Raisa Sultana Begam and others v. Abdul Qadir and others, AIR 1966 All 318 . Similar view has been taken by the Honble Supreme Court in the case of M/s Hulas Rai Baij Nath v. Firm K.B. Bass and Co., AIR 1968 SC 111 . However, no fresh suit can be filed by the same parties for the same cause of action claiming the same relief except and unless the suit is withdrawn with permission to file a fresh suit and the second suit is not maintainable. However, the position would be different if the suit has already been decreed and thereafter a prayer for withdrawal of the suit is made in a pending appeal, because due to the said Judgment and decree certain rights and liabilities of the parties have accrued, then there is no unconditional right vested in the plaintiff to withdraw the suit before the appellate Court and the withdrawal is subject to the discretion of the appellate Court. This view has been endorsed by a Division Bench decision of this Court in the case of Vidhyadhar Dube and others v. Har Charan and others, AIR 1971 All 41 , wherein it was held in para-6 that for withdrawing the suit when a decree has been passed and an appeal to the same has been preferred the appellate Court may permit the plaintiff to withdraw the suit when by such withdrawal no vested or substantive right of the defendant is to be adversely affected but the plaintiff may not be permitted to withdraw the suit at the appellate stage if it results in depriving the defendant of some vested or substantive rights. It was further held that in the appellate Court the appellant may be held to have an absolute right to withdraw the appeal by equating the words "suit", "plaintiff" and "defendants" occurring in Order 23, Rule 1 (1) of the Code with the words "appeal", "appellant" and "respondents" but he has no absolute right to withdraw the suit. The withdrawal of the appeal will not adversely affect the respondents if they have filed any separate appeal or cross-objection as the same will remain unaffected. In Para-10 it has been held that at the stage of appeal, the plaintiff, if he had filed the appeal has the right to withdraw the appeal but not the suit except with the leave of the Court. 12. For reasons stated herein above and without going into the merits of the case on the substantial question of law so formulated or the maintainability of the appeal, and as the respondents-defendants have no objection to the withdrawal of the appeal itself the Withdrawal Application No. 192395 of 2006 dated 13.9.2006 is allowed without costs. 13. The Impleadment Application No. 216517 of 2006 dated 11.10.2006 moved by one Shiva Kant Mishra, appellant-proposed-plaintiff and the Impleadment Application No. 89125 of 2007 dated 4.4.2007 moved by one Grish Singh, appellant-proposed-plaintiff respectively are hereby rejected without costs. 14. In the result, the appeal is dismissed as withdrawn/not pressed without costs. ————