( 1 ) THE petitioners-plaintiffs in I. A. No. 1123 of 2004 in O. S. No. 24 of 2000 on the file of senior Civil Judge, Kadapa, aggrieved by the order dated 14-2-2005 had preferred the present revision petition. Notice before admission was ordered and the respondents were served, but, none represents them.

( 2 ) THE petitioners/plaintiffs moved an application in I. A. No. 1123 of 2004 in O. S. No. 24 of 2000 on the file of Senior Civil judge, Kadapa under Order XXIII Rule 1, read with Section 151 of the Code of Civil procedure (for short the Code ) praying this court to permit them to withdraw O. S. No. 24 of 2000 with a liberty to file fresh suit.

( 3 ) IT was stated in the affidavit filed in support of the application that the suit was originally drafted by one Sri K. Krishna Murthy, advocate in which there were certain serious defects in the pleadings and also in the reliefs prayed for. In view of the fact that the suit was not properly framed, the subsequent counsel sri N. Krishna Murthy while preparing examination-in-Chief affidavit having gone through the records, advised that the plaint was not properly drafted and no purpose would be served in praying for amendment since amendment would be of substantial nature and hence advised that withdrawal of the suit reserving liberty to file fresh suit would be just and proper. It is also stated that the plaintiffs are illiterates and not having sufficient legal knowledge and just they followed the advice of the counsel.

( 4 ) A counter was filed opposing the matter. It was stated that the application is a vexatious one and only with a view to harass the respondents this application was thought of. It was also stated that the senior paternal uncle of the petitioners, namely, P. Ayyavaru had filed O. S. No. 90 of 1999 on the file of III additional Junior Civil Judge, Kadapa for the same relief and after temporary injunction application was dismissed in the suit, the said Ayyavaru got the present application filed in the present suit. Certain other objections had also been taken.

( 5 ) THE learned Judge recorded certain reasons and observed that it is not a formal defect and the plaintiffs cannot be permitted to file fresh suit. Since the plaint was filed more than four years ago, filing of application by the plaintiffs after sufficient lapse of time cannot be allowed. It was also recorded that the plaintiffs are not having any hope of winning the suit and hence, they thought of filing the present application and accordingly, dismissed the said application. Aggrieved by the same, the present revision petition is preferred.

( 6 ) SRI K. G. Krishna Murthy learned counsel representing the revision petitioners would contend that when an application of this nature had been moved, instead of considering the application in the light of the language employed in Order XXIII Rule 1 of the Code, the learned Judge recorded certain extraneous reasons touching the merits of the matter and ultimately refused permission to withdraw the suit with a liberty to file fresh suit. The learned counsel also would submit that the trial was not commenced and no prejudice would be caused even if such a liberty is given by permitting the withdrawal of the suit. Reliance also placed on two decisions of this Court in M/s. Vizag Medical stores v. M/s. Bharat Heavy Plate and Vessels ltd. (A. P.) and Jajala Narayana Reddy v. K. Mohan Reddy and another.

( 7 ) HEARD both the counsel.

( 8 ) ORDER XXIII Rule 1 reads as under: 1. Withdrawal of suit or abandonment of part of claim:- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 4 of order XXXIII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. (2) An application for leave under the prov