The respondents filed O.S.No.89 of 2002 in the Court of Junior Civil Judge, Badvel, against the petitioner, for the relief of perpetual injunction, in respect of the suit schedule property. The petitioner, on the other hand, presented a counter-claim, for that very relief. The trial Court dismissed the suit and decreed the counter-claim.

The respondents filed A.S.No.5 of 2008 in the Court of Additional Senior Civil Judge-cum-Fast Track Court, Rajampet at Badvel. After some time, they filed I.A.No.37 of 2008, under Order XXIII Rule 1 of the Code of Civil Procedure, 1908 (CPC), with a prayer to permit them to withdraw the appeal, without prejudice to the right to file a fresh suit for declaration of title and recovery of possession, in respect of the suit schedule property. The petitioner opposed the application, stating that the valuable rights have accrued to him, on account of the decree passed in his counter-claim and the same cannot be defeated by according permission to the respondents, enabling them to file a fresh suit. Through an elaborate order, dated 15.07.2008, the lower Appellate Court allowed the I.A. The same is challenged in this C.R.P.

Sri L.J.Veera Reddy, learned counsel for the petitioner, submits that the order passed by the trial Court granting permission to the respondents to file a fresh suit, is opposed to law and there was absolutely no factual basis for it. He contends that none of the conditions mentioned in sub-rule (3) of Rule 1 of Order XXIII CPC, are present in this case, and that the impugned order cannot be sustained in law. He further submits that the permission accorded to the respondents by the lower appellate Court would violate the mandate under Order II Rule 2 CPC, which insists that the whole claim of a plaintiff, based the same cause of action, must be included in a suit.

The respondents failed in their effort to obtain a decree of perpetual injunction, against the petitioner. On the other hand, they suffered a decree of similar nature vis-à-vis the petitioner, in the form of a counter-claim. They preferred an appeal against the decree passed by the trial Court. Instead of proceeding with the appeal, they have chosen to withdraw it, with liberty to file a fresh suit for declaration of title and recovery of possession. Though learned counsel for the petitioner, initially, raised an objection stating that there is no provision in the C.P.C., which enables the respondents to withdraw the appeal. He did not proceed beyond a point, obviously on realizing that the procedure that applies to original proceedings would govern the appeals also, unless separate provisions are made, on any aspect.

A plaintiff in a suit has full liberty to withdraw the suit, at any stage. The only restriction placed upon him is that, if a suit is withdrawn, he cannot present a fresh suit on the same cause of action and obviously, for the same relief, unless he reserves to himself the right to do so and the Court accords such permission. Rule 1 of Order XXIII CPC, which governs the withdrawal of a suit, reads as under:

1. "Withdrawal of suit or abandonment of pat of claim:-

(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendant abandon his suit or abandon part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII 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 proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Whether the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficien