Tommenindi Adeyya v. Chilukuri Venkatarayudu

1. The suit was for dissolution of partnership and to take accounts. Defendant 2 also in his written state merit prayed that accounts may be taken and the plaintiff and defendant 1 may be made to pay him his share of the profits. When the amount was ascertained he paid the court-fee on it.

2. Subsequently the plaintiff withdrew his suit under O. 23, R. (1) of the CPC. He is entitled to do so on payment of the costs which it is open to the Court to direct him to pay. The question that now arises for decision is whether defendant 2 is entitled to pray that his claim must be tried. We think that according to the decision reported as McGowan v. Middletou(1), he is so entitled and that the withdrawal of the suit by the plaintiff does not put an end to it so as to prevent defendant 2 from enforcing the claim put forward in his written statement. We do not see any reason for not following that decision. We think therefore the Subordinate Judge is right and dismiss these appeals with costs.

S.N/R.K

3. Appeals dismissed.