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TMI Blog1971 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... 919 of 1968 for permission to withdraw the suit with liberty to file a fresh suit under O. 23 , R. 1, Civil P. C. The said application was opposed by the respondent on the ground that the petitioner was not entitled to have liberty to file a fresh suit on the same cause of action. The application was considered by the lower court and it felt that the petitioner has not made out a case for the grant of liberty to file a fresh suit on the same cause of action. But at the same time the lower court granted permission to the petitioner to withdraw the suit without liberty to file a fresh suit on the same cause of action and the court also directed the costs of the suit being paid by the plaintiff to the defendants. The order in I. A. No. 919 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case it is for any formal defect that the suit is sought to be withdrawn. The reason given for the withdrawal of the suit is that the interim injunction granted earlier by the court has been withdrawn as a result of which, the respondents are proceeding with the construction on the common wall. The above facts, even if true, cannot entitle the petitioner to have the liberty to file a fresh suit on the same cause of action. I am of the view that there are no sufficient grounds for the petitioner to institute a fresh suit on the same cause of action and the lower court was right in taking the view it did with reference to the petitioner's right to have the liberty to file a fresh suit. 4. As regards the second contention howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it was not intention of the Legislature that the plaintiff should be put to this loss by breaking up the prayer for withdrawal with permission to file a fresh suit about the same subject matter into two parts. This is also the view taken in Marudachala Nadar v. Chinnamuthu Nadar AIR1932Mad155 . 5. The learned counsel for the respondents, however, submits that the facts in this case will fall within the ruling of Panchapakesa Ayyar, J., in Veeraswami v. Lakshmudu AIR1951Mad715 . In that case the plaintiff filed a petition to withdraw a suit with permission to file a fresh suit regarding the same subject P. C. and the court was not willing to grant the permission sought for but passed an order the petitioner may withdraw the suit if he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might withdraw the suit if he wants, but it will not give him permission to file a fresh suit regarding the same subject matter, and that such an application must be allowed or refused in toto and that if the liberty is refused the suit should not be dismissed at once but retained for trial in the usual course and the court cannot divide the petition into two and accept the withdrawal and refuse the liberty in the same order. In this case the lower appellate court after finding that the petitioner is not entitled to the liberty sought for should have dismissed the application and given a liberty to the petitioner to proceed with the suit. But the lower court has, however, proceeded to order the petition permitting him to withdraw the suit w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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