Plaintiff's right to withdraw an accounts suit remains intact until a preliminary decree or vested defendant right arises.

Order 23 Rule 1 CPC is stated to give a plaintiff an unqualified right to withdraw a suit, subject only to consequences under the rule, unless the defendant has already acquired an independent vested right. In a suit for rendition of accounts, the defendant does not ordinarily gain a right to force continuation merely because accounts may later show money due to him; such a right arises only after a preliminary decree for accounts. Where no preliminary decree had been passed, the written statement did not amount to set-off, and no counterclaim existed, the defendant had no vested right to prevent withdrawal.

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Issues: Whether a plaintiff in a suit for rendition of accounts can withdraw the suit as of right before any preliminary decree is passed, and whether the defendant acquires any vested right that prevents such withdrawal.

Analysis: Order 23 Rule 1 of the Code of Civil Procedure confers on the plaintiff an unqualified right to withdraw a suit, subject to the consequences prescribed by the rule, unless some independent vested right has already accrued to the defendant. In a suit for accounts, a defendant does not ordinarily obtain a right to compel the plaintiff to proceed merely because accounts may later disclose a sum due to the defendant. Such a right, if any, can arise only after a preliminary decree for rendition of accounts has been passed. On the facts, no preliminary decree had been made, the written statement did not amount to a set-off, and no counterclaim was available. The defendant therefore had no vested right capable of defeating withdrawal.

Conclusion: The plaintiff was entitled to withdraw the suit, and the refusal to compel its continuation was justified. The appeal failed.

Ratio Decidendi: A plaintiff may withdraw a suit before a preliminary decree for accounts is passed unless the defendant has already acquired a vested right, such as by set-off, counterclaim, or a decree crystallizing relief in his favour.

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