N. Y. HANUMANTHAPPA, J.

( 1 ) IN this civil revision petition defendant/petitioner is challenging the order passed by the trial court on i. a. no. 14 filed under order 23, rule 1, cpc in o. s. no. 64 of 1980 on the file of the ii munsiff, and j. m. f. c. , mysore, seeking for permission to withdraw the suit with liberty to file a fresh suit in future for the reasons stated in the affidavit filed in support of the said i. a. no. 14.

( 2 ) A few facts which are necessary to dispose of this revision petition are that onejavaregouda was the owner of the suit land. On 2-7-1947, javaregouda entered into an agreement to sell the property measuring 7 acres 25 guntas to one Mr. Peersab for a sum of Rs. 200/- on a contingent contract, that peersab should reconvey the property of 5 acres 25 guntas out of total extent of land to javaregouda when it becomes wet.

( 3 ) IN the year 1980, javaregouda filed a suit against the sons of peersab on thebasis of the agreement dated 2-7-1947, for relief of specific performance that defendants should execute a sale deed in respect of 5 acres 25 guntas of wet land for Rs. 200/- and on their failure, court should get the sale deed registered in his favour. The same was opposed by the defendants. It was contended that they are not liable to execute the sale deed disputing the very agreement dated 2-7-1947. It was also contended that there is no cause of action for filing the suit.

( 4 ) ON the basis of the pleadings, the trial court framed the following issues:1) whether the plaintiff proves that the defendants father had entered into an agreement of sale dated 2-7-1947 as alleged in the plaint? 2) whether the defendants prove that the alleged agreement is void and unenforceable? 3) whether the plaintiff is entitled to the relief as prayed for? 4) what decree or order?

( 5 ) IN support of the rival contentions both the parties led evidence. Oncompletion of evidence of p. w. 2, legal representatives of plaintiff, filed an application under order 23, rule 1 of cpc requesting the court to permit them to withdraw the suit with liberty to file a fresh suit in future on the ground that originally their father javaregouda filed a suilbclieving that the land in question had become wet. The original plaintiff javaregouda having died during the pendency of the suit his sons came on record as legal representatives. Subsequently on examining the concerned officer they found that the land in question has not become wet. Thus no cause of action has yet arisen. The relevant observations in the order of the trial court read as under:". . . . . HE has stated on oath before the court that no map in respect of distributory canal has been prepared and further, he has stated that he cannot say when the suit land would become wet or not. In the light of the above fact, it is felt that the suit is premature and as such, the suit is not sustainable at present. Hence, the application and prayed to allow the same. " the said application was opposed by the defendants contending that such an application is not maintainable. The suit itself based on a contingent contract is unenforceable in law. The plaintiffs had ample opportunity to withdraw the suit or to prosecute the suit as the suit was filed in the year 1980. When it lied over since 1989, now plaintiffs are estopped from contending that cause of action has not yet arisen and therefore they are entitled to withdraw the suit with liberty to file a fresh suit. It was also contended that since 1980, a right has been accrued to the defendants, which cannot be taken away by permitting the plaintiffs to withdraw the suit. The trial court heard both sides on the said application. As far as la. No. 14 is concerned, whatever stated in the plaint was reiterated, whereas defendants in support of their contentions, placed reliance on the principles laid down by the High Court of Madras and allahabad in the following decisions namely: (i) AIR 1950 (37) allahabad 489, wherein it is held thus:

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