C. PRAVEEN KUMAR, J.

1. Assailing the order dated 30.11.2016, passed in I.A.No. 447 of 2016 in O.S. No. 297 of 2015 on the file of the Special Sessions Judge-cum-IV Additional District Judge, Tirupati, wherein an application filed Under Order 23 Rules 1 (3)(b) and section 151 of the code of Civil Procedure seeking permission of the Court to withdraw the suit, was rejected, the present revision came to be filed under Article 227 of the Constitution of India.

2. The petitioner herein is the plaintiff and the respondents herein are the defendants before the trail Court. For the sake of convenience, the parties hereinafter referred to as arrayed in the suit.

3. Tire facts in issue are as under:

The petitioner/plaintiff filed O.S. No. 297 of 2015 seeking permanent injunction restraining the defendants from registering the suit schedule property by sale, gift, mortgage or in any other manner detrimental to the agreement of sale in the name of the plaintiff. It is stated that though the agreement of sale executed by Sapthagiri Co-operative House Building Society Limited, represented by its President and Secretary in favour of the plaintiff but the suit was filed against the individuals, who are President and Secretary of the Society along with legal heirs of the vendors of the society. It is also stated that the suit ought to have been filed seeking relief for specific performance of agreement of sale, but was filed only for permanent injunction. In view of the above defects, the plaintiff filed a petition seeking withdrawal of the suit with a liberty to file a fresh suit on the basis of agreement of sale.

4. A counter came to be filed by the 2nd respondent contending that the respondents 1 and 2 never purchased the plaint schedule properties at any time and that the respondents are not the owners of the property.

5. After considering the rival submissions the trial Court rejected the said application. Challenging the same the present revision came to be filed.

6. Learned counsel for the petitioner mainly contended that though the plaintiff purchased the suit schedule property from Sapthagiri Co-operative House Building Society, represented by its President and Secretary, but he filed the suit against the President and Secretary of the society along with legal heirs of the vendor of the society in their individual capacity. Hence, the plaintiff seeks for withdrawal of the suit with a liberty to file a fresh suit for specific performance of contract basing on the agreement of sale.

7. On the other hand, learned counsel for the respondent submits that if the plaintiff wants to withdraw the suit, he may be permitted to withdraw the suit but liberty cannot be granted to file a fresh suit.

8. Before proceeding further, it would be useful to refer to Order 23, Rule 1 (3)(b) of C.P.C., which reads as under:-

"(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:

(3) Where the Court is satisfied -

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

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim."

9. Learned counsel for the petitioner mainly seek permission to withdraw the present suit with a liberty to file a fresh suit for specific performance of agreement of sale dated 15.12.2014. Originally, the petitioner filed a suit seeking the relief of permanent injunction. Later, he approached the Court by filing a petition under Order 23, Rule 1(3)(B) of CPC, seeking to withdraw the suit with a liberty to file a suit for specific performance of an agreement on the same cause of action. It is to be noted that the agreemen