JUDGMENT Mr. Rajiv Narain Raina, J.: - The petitioner is defendant in Civil Suit No.48 of 2008 instituted against her seeking the relief of declaration with plaintiff claiming that she is owner in possession of the suit property which is a dwelling house constructed on the disputed plot situated in an area measuring 250 sq. yds. falling in Village Shekhpura Khurd, Tehsil Dera Bassi, District Mohali now comprising in the area of Nagar Council, Dera Bassi. The plaintiff claimed that she purchased the suit property vide a registered sale deed No.4629 dated September 7, 2005 executed in her favour through power of attorney executed in favour of Smt. Pushpa Devi. She asserted delivery of possession of the said property on conveyance. Since the defendant was disputing title before filing of the law suit, the plaintiff claimed relief of permanent injunction as well against the petitioner. 2. In defence of the suit, the petitioner on entering appearance refuted the claim and asserted that the plaintiff was neither owner nor in possession of the house brought into dispute. The sale deed was null and void since the power of attorney executed in favour of Pushpa Devi by the owner stood cancelled vide Vasika No.130 dated May 14, 2003. All formalities following cancellation of power of attorney including issuance of notice etc. were duly carried out and therefore Pushpa Devi was not competent to execute sale deed in the year 2005 in favour of anyone. 3. The trial Court dismissed the suit vide judgment and decree dated February 5, 2013. 4. Aggrieved, the plaintiff preferred an appeal on 11th March, 2013 before the learned Additional District Judge, Mohali. During the pendency of the appeal, the unsuccessful plaintiff applied for leave of the Court to withdraw the suit. The learned Appellate Court has accepted the request and allowed the plaintiff to withdraw the suit by reasoning that the Appellate Court enjoys the same powers as that of the trial Court in terms of Section 107(2) of the Code of Civil Procedure, 1908 (for short “the Code”). The result is that the decree against the plaintiff and in favour of the defendant has been nullified. The result is that the decree against the plaintiff and in favour of the defendant has been nullified. Nevertheless, the suit was contested and findings were returned and recorded by the trial Judge on the merits of the case and the decree that resulted conclusively determined the rights of the parties with respect to the issues framed during trial which according to the learned counsel for the petitioner-defendant could not have been negated by allowing withdrawal of the suit itself. Valuable declaratory rights which have accrued to the defendant on adjudication have been casually destroyed by the impugned order with respect to the sale deed leaving her exposed to a double civil jeopardy. 5. The learned Additional District Judge, SAS Nagar, Mohali by the impugned order dated February 6, 2014 has given two reasons in allowing the plaintiff to withdraw the suit in appeal. The Court has assumed that it is a settled law that an appeal is a continuation of the suit and the Appellate Court is thus also competent to grant permission for withdrawal of the suit in view of Section 107(2) of the Code. The second reason which has weighed in her mind is that the suit has been dismissed, which means that the suit in question has neither vested any right in the plaintiff nor divested the defendants of any of their rights to property. In the said circumstances, the withdrawal of the suit by the plaintiff at this stage would not cause any harm or detriment to the defendants. 6. Is this approach legally sound is the question which begs an answer. We need to first understand Section 107 of the Code which deals with the powers of the appellate court and is best read in extenso which is as follows:- “ 107. Powers of Appellate Court. (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.” 7. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.” 7. The question arises whether the lower Appellate Court was correct in founding the order on the touchstone of sub-section (2) of section 107 of the Code. The jurisdiction of the Appellate Court in exercising concurrent jurisdiction with the trial court is circumscribed by sub-clauses (a) to (d) of sub-section (1) of section 107 of the Code but they are themselves subject to such conditions and limitations as may be prescribed by the Code and subject to those conditions and limitations jurisdiction under sub-section (2) can be invoked since the sub-section begins with the words “Subject as aforesaid”. Therefore, subject to the conditions and limitations prescribed by the Code, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits. 8. To answer the question, one would have to go to the field occupied and governed by Order 23 of the Code which deals with withdrawal and adjustment of suits and subject to the limitations prescribed therein. Withdrawal of a suit can be allowed provided the Court is satisfied in terms of Order 23 Rule 1(3) that a suit must fail by reason of some formal defect, or in case there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. In these two circumstances as explained in sub-section (3) Court may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit on the same cause or causes of action and on the same subject matter. However, Order 23 Rule 1(4) precludes a plaintiff abandoning or withdrawing from a suit without permission shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim as is sought to be withdrawn. 9. However, Order 23 Rule 1(4) precludes a plaintiff abandoning or withdrawing from a suit without permission shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim as is sought to be withdrawn. 9. It follows sequitur that if the plaintiff is precluded from instituting a fresh suit with respect to the sale deed and the evidence led by the parties and findings arrived at by the trial Court on the issues framed after appreciating the evidence brought on record then it is quite possible that the Court may grant the permission but that would have to be subject to award of costs. However, if the intention is to bring a fresh suit challenging the sale deed then it would be destructive of the decree and the rights which have settled and vested in the parties to the suit once a decree is passed by the trial Court, which is appealable to a superior court. 10. The impugned order dated February 6, 2014 permitting plaintiff to withdraw suit as is worded does not appear to completely bar or foreclose a fresh action at the hands of the unsuccessful plaintiff since the trial Court records that the withdrawal of the suit by the plaintiff “at this stage” would not cause any harm or detriment to the defendant. The words “at this stage” to my mind predicates a wide leverage to the plaintiff if it brings a fresh suit urging that the withdrawal of the suit in appeal was subject to “at this stage” admitting inversely that a fresh suit is more likely than not competent even though permission to file a fresh suit has not been granted to the plaintiff in express words. If the decree does not vest any rights in the plaintiff then at the same time the rights vested in the defendants with respect to the issues settled cannot be divested from them. The law on the subject and the opinions of different High Court and of Supreme Court was examined in R. Rathinavel Chettiar vs. V. Sivaraman, (1999) 4 SCC 89 by the Supreme Court. The Supreme Court inter alia approved the decision of this Court as cited in para.16 of the report by observing:- “16. The law on the subject and the opinions of different High Court and of Supreme Court was examined in R. Rathinavel Chettiar vs. V. Sivaraman, (1999) 4 SCC 89 by the Supreme Court. The Supreme Court inter alia approved the decision of this Court as cited in para.16 of the report by observing:- “16. The same view was also expressed by the Punjab and Haryana High Court in Sh. Guru Maharaj Anandpur Ashram Trust, Guna v. Chander Parkash and others, 1986(Supp.) RCR (Rent) 548 (P&H) : 1986(1) 89 Punjab Law Reporter 319. The Court observed:- “Once the decree is passed by the trial Court, certain rights are vested in the party in whose favour the suit is decided. Thus, the plaintiff is not entitled to withdraw the suit as a matter of course at any time after the decree is passed by the trial Court. In these circumstances, the lower appellate Court has acted illegally by allowing the plaintiffs to withdraw the suit after setting aside the judgment and decree of the trial Court dismissing the suit.” 11. The trial Court therefore erred in relying on Section 107(2) of the Code as giving it a blanket authority to act beyond the principles of Order 23 Rule 1 of the Code. 12. As a result, the impugned order is not found sustainable. The petition is allowed. The impugned order dated February 6, 2014 is set aside. The matter is remanded to the learned trial Court to pass a fresh order in terms of the opinion expressed in this order. The trial Court would in its discretion permit the withdrawal of the suit in appeal by refusing permission in specific words to the plaintiff to institute a fresh suit on the same cause of action with respect to the subject matter sale deed, or it may instead go ahead with the hearing of the appeal and pass an order on merits in accordance with law. However, if it bars institution of a new suit by permitting withdrawal of the suit in appeal it would consider quantifying costs to be paid to the defendants when the withdrawal is without permission under Order 23 Rule 1(3) of the Code. Such costs would need to be realistic in terms of actual expenses incurred by the defendant towards litigation costs defending a frivolous suit, by accounting for expenses incurred in production of witnesses, documents etc. Such costs would need to be realistic in terms of actual expenses incurred by the defendant towards litigation costs defending a frivolous suit, by accounting for expenses incurred in production of witnesses, documents etc. in defence of the suit, apart from travel costs to and fro, court fee paid and other sundry out of pocket expenses incurred and therefore compensatory cost as assessed by the trial Court deserve to be imposed so that a strong message goes to litigants that suits will not be permitted to be withdrawn in appeal casually after inviting adverse findings in declaratory decrees and injunctions by the trial Courts. In doing so the learned trial Judge will keep in mind the principles of section 35 (2) of the Code that costs follow the event. It may also apply the stringent principles of section 35-A of the Code in awarding compensatory costs to the defendant in respect of false or vexatious claims by following the procedure prescribed in the aforesaid provision and returning findings whether it should be so ordered in the facts and circumstances of the case and that too in appeal. For this a fresh order would need to be passed after hearing both sides. It must be remembered that Court time cannot be permitted to be squandered and misspent or its process abused by misconceived wanton litigation. Litigants should be ticked off at the earliest opportunity and warned that a false, frivolous and vexatious suit can be visited by back breaking costs hard for them to pay since the Court in terms of section 35 of the Code shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. 13. If punitive or compensatory costs and damages are not imposed then reasons should be assigned for not awarding them. There would have to be a positive finding that the claim is neither false nor vexatious and was arguable warranting consideration by Court. After all, costs should invariably follow the event. This is the mandate of Ss. 35 and 35-A of the Code. There would have to be a positive finding that the claim is neither false nor vexatious and was arguable warranting consideration by Court. After all, costs should invariably follow the event. This is the mandate of Ss. 35 and 35-A of the Code. Neither the lawyer nor the litigant in the moffusil has ever had cause to worry about the consequences of filing false claims and applications in civil courts and what that might consequentially entail unless they are warned in the very beginning that if the suit is found false, frivilous or vexatious they will be handed down a stiff order at the end of the day by the Court, just as the picture in this case demands in the plaintiff trying to back out of the adverse judgment with such quantity of time wasted for six long years to no purposeful end except to harass the defendant. Wastage of court time I think should itself be a relevant additional factor in judicial assessment of award of costs to be paid by the polluter who knocked the Court’s door with a lost cause, filing the case with an oblique purpose of troubling the defendant just for the fun of it. 14. It is said that he who fights and runs away lives to fight another day may be good for self preservation but the defence cannot be countenanced in Court on the same anology and for the same cause or substantially similar cause and is certainly not an acceptable legal principle to apply here in the present case of an appellant trying to nullify the verdict against him. This kind of judicial temperament exercised carefully and summarily if acquired early enough may go a long way in lifting the terrible yoke of burgeoning ill-conceived litigations from the overworked shoulders of the Court. False cases and frivolous miscellaneous applications aimed at keeping vexatious cases afloat for years and filed on a daily basis peppering the dockets of the learned trial courts is resulting in retarding an already tardy process of downloading and printing justice on court-paper, choking up decisions in more meritorious law suits pending trial at different stages throughout the territory. Something needs to be done urgently to stem the rot immediately and “at this stage”. ---------0.B.S.0------------ —————————