This Civil Revision Petition is filed under section 115 of CPC challenging the order dt. 26/10/2010 in I.A.No. 569 of 2010 in AS.No. 59 of 2008 on the file of the Court of Judge, Family Court-cum-Additional District and Sessions Judge, Nalgonda.

2. The petitioner was the plaintiff in OS.No. 91 of 2006 on the file the Court of Senior Civil Judge, Nalgonda. He filed the said suit against the respondents for partition and separate possession of his 1/3rd share in the plaint schedule properties and also sought a declaration that certain gift deeds bearing Nos. 3232 and 3233 dt. 20/05/2002 are not binding on him. By judgment and decree dt. 02/6/2008, the said suit was dismissed.

3. Challenging the judgment in the suit, the petitioner had filed AS.No. 59 of 2008 before the Family Court-cum-Additional District and Sessions Judge, Nalgonda.

4. While the appeal was pending he filed I.A.No. 569 of 2010 under Order-XXIII, Rule 1 [3] [b] stating that he would like to withdraw the appeal with liberty to file a fresh suit for declaration of his title and recovery of possession of the property against the respondents, and that the appeal be dismissed as not pressed ,giving liberty as sought by him.

5. By order dt.26/10/2010 I.A.No. 569 of 2010 was allowed and AS.No. 59 of 2008 was dismissed as not pressed “without reserving any right to the appellant to institute a fresh suit” as sought by him. Aggrieved thereby, this revision is filed by the petitioner.

6. Heard the counsel for the petitioner and the counsel for the respondents.

7. The counsel for the petitioner contended that where an application was filed under Order-XXIII, Rule-1 [3] [b] of CPC it is not open to the court to treat it as if it is an application under Order-XXIII, Rule-1 [1] without any condition and grant prayer for withdrawal of the appeal while refusing the permission to bring a fresh suit. He relied upon a decision in THADI KONDA VEERASWAMY V/s. THULLUM PEDA LAKSHMUDU AND ORS (AIR [38] 1951 MADRAS-715), and KANTIBHAI D. PATEL AND ORS. V/s. AHMEDABAD MUNICIPAL CORPORATION (1998 AIHC 1594 [GUJARATH HIGH COURT]). He further contended that no reason has been assigned by the court below for passing this order.

8. The counsel for the respondents on the other hand contended that the petitioner had filed a separate suit for partition subsequently and is harassing the respondents by filing suit after suit and it is impermissible for him to do so.

9. I have noted the submissions of both sides.

10. The question which arises for consideration in this case is whether the court below could have allowed I.A.No. 569 of 2010 and dismissed AS.No.59 of 2008 as not pressed, while declining the prayer of the petitioner/appellant therein to give him permission to file a fresh suit. Admittedly in the application filed by the petitioner, he specifically sought permission to file a fresh suit while seeking to withdraw the appeal. So the application was filed under Order-XXIII, Rule-1 [3] [b] of CPC and it was not an application under Order XXIII, Rule-1 [1] seeking withdrawal of the appeal without seeking permission to file a fresh suit. Therefore, the court below could not have dismissed the appeal as withdrawn while declining permission to the petitioner to file fresh suit.

11. I am fortified in taking this view by the decision of the Madras High Court in THADIKONDA VEERASWAMY [1-supra]. The said court while considering Order-XXIII, Rule-1 [2] [which is in parimetria with Order-XXIII, Rule-1 [3] CPC after the amendment to the CPC made by section 74 of CPC [Amendment] Act 104/1976 w.e.f. 01-2-1977] observed:

Order-23m Rule 1 [2] CPC contemplates a withdrawal from the suit with liberty to bring a fresh suit. Here the plaintiff must ask for leave and must make out a case within cl. (a) or (b), the court has no jurisdiction to allow such withdrawal with liberty unless the suit must fail by reason of some formal defect, under cl. (a) or unless there are “othger sufficient grounds” for allowing the