Point of Law: withdrawal of the suit, but they are aggrieved only by the permission granted by the trial Court allowing the plaintiffs to file a suit afresh in respect of the same properties. Thus, since there is no merit in the petition filed by the plaintiffs seeking permission to withdraw the suit with a liberty to file a suit afresh, the petition is not maintainable.

ORDER :

Sri Nemani Venkateswarulu, learned counsel, representing Ms. T.V. Sridevi, learned counsel for the revision petitioners, was heard on the previous day of hearing and there is no representation for the respondents/ plaintiffs on that day. Even today, there is no representation for the respondents. Sri Nemani Venkateswarulu, learned counsel, representing learned counsel for the revision petitioners, is present.

2. This revision petition is filed under Article 227 of the Constitution of India against the orders, dated 07.12.2017 passed in I.A.No.682 of 2017 in O.S.No.42 of 2010 on the file of the Court of the Senior Civil Judge, Chodavaram.

3. The petition in I.A.No.682 of 2017 was filed by both the plaintiffs under Order 23 Rule 1 read with Section 151 CPC by the first plaintiff seeking permission to withdraw the suit, with a liberty to file a fresh suit, if necessary. The same has been allowed after hearing both the parties. Aggrieved by the same, the present revision petition is filed.

4. The suit was originally filed for partition by two plaintiffs against the sole defendant. Thereafter, in view of death of sole defendant, his legal representatives were brought on record as defendant Nos.2 and 3 though it was opposed by the plaintiffs that they are not legal heirs of the defendant. The trial Court directed the plaintiffs to add without prejudice to contest the plaintiffs. During the trial, the 2nd plaintiff was examined as P.W.1 and during the cross-examination of P.W.2, the defendants filed a registered Will Deed, dated 03.04.2002 stated to be executed by the husband of the first plaintiff. As per the Will, the plaint schedule properties were bequeathed in favour of the first plaintiff with absolute rights. Thus, the first plaintiff is the owner of the plaint schedule property. Except the first plaintiff, none other has any right over them. The first plaintiff came to know about the Will only after filing of the same in the Court by the defendants. The existence of the Will was wantonly suppressed by the defendant Nos.2 and 3 and came on record as Legal Representations. Under these circumstances, there is no need to continue the suit and as such, this petition is filed.

5. The defendant Nos.2 and 3/respondent Nos.2 and 3 filed counter resisting the petition and denying the averments made in the petition and contending that the existence of the Will has been disclosed at Para 3 of legal notice marked as Ex.A4 issued prior to the institution of suit and also in Para 5 of the written statement filed by the first defendant on 31.08.2010 and thus, it is false that the petitioners have come to know about the Will only when it was filed in the cross-examination of P.W.1 and that this petition was filed only when plaintiffs found that the evidence is against them and therefore, there are no bona fides for filing the petition. It is also contended that the defect in the suit is not formal and no substantial grounds are there to allow the plaintiffs to file fresh suit in the subject matter of the suit. Plaintiffs cannot be permitted to approbate and reprobate. The respondents prayed for dismissal of the said petition.

6. The trial Court allowed the petition on the ground that the knowledge of the petitioners/ plaintiffs about the Will is a question of fact, which has to be decided basing on the oral and documentary evidence on both sides, but at this stage, it is not possible to give any finding thereon and that, the permission to withdraw the suit can be granted as the plaintiffs sought the same relief and that, at the most, the respondents can insist for payment of costs, they cannot oppose the relief of withdrawal of this suit. The trial Court further observed that the entitlement of the petitioners to file a fresh suit cannot be barred and in the event of filing of a fresh suit, the respondents can put forth all the contentions in that suit.

7. Having aggrieved by such order, the revision petition was filed contending that the tr