The unqualified right of the plaintiff to withdraw the suit and the absence of provisions compelling the court to refuse permission to withdraw the suit.

( 1 ) THIS Revision Petition is preferred against the order passed on i. A. 12 in O. S. 184/94 passed by the Prl. Civil Judge (Jr. Dn.) madhugiri dated 3. 12. 1998. It appears that the petitioner was the plaintiff in the suit and he filed an application under order 23 Rule 1 (3) seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action in respect of the same subject matter.

( 2 ) IT was alleged that the suit property has been acquired through a sale deed from the defendant and a pale of adverse possession also taken. It is also averred by the plaintiff that the defendant has taken up the contention that the had retained some portion of the suit property sold to the plaintiff and the concerned Gram Panchayath is also a necessary party as the plaintiff felt that the amendment is to include the Gram Panchayath or to make the plaint amended to cure the defect pointed out would cause delay and complication and therefore the application came to be filed.

( 3 ) IN the objection filed by the defendant, it was claimed that as per the sale deed dated 20. 1. 1982 (wrongly typed as 1992 in the order copy), the plaintiff is entitled to enjoy the portion purchased by him and not the portion retained by the defendant. It is also alleged that the formal defect can be cured by way of amendment and impleading the parties. On the basis of the respective contentions, the trial Court has chosen to reject the application holding that the points pleaded by the plaintiff cannot be termed as technical or formal defect. Therefore, no permission could be granted.

( 4 ) FEELING aggrieved by this order, the plaintiff has come forward with the above revision, contending that in view of the discovery the entries made in the panchayath records regarding ownership of the disputed property, the plaintiff has chosen to with draw the suit but to file a comprehensive suit impleading the panchayth as a party. It was also further contended that even prior to the date of purchase the suit property had been in his possession and enjoyment and thereafter the plaintiff also in possession of the suit property. The reason withdrawal was that the discovery of the endorsement given by the village panchayath on 17. 7. 1994 stating that the very property was granted to the father of the plaintiff. As this document was not available at the time of filing of the suit and the plaintiff being illiterate person, went to the extent of purchasing the very property which has been granted to his father nearly 60 years ago by the Gram panchayath. Therefore, filing of the fresh suit is necessary for the purpose of establishing the rights.

( 5 ) MR. Hanumatharayappa appearing for the respondent would contend that such a plea cannot be granted. He relied upon the dictum of the. Supreme Court in M/s HULAS RAI BAIJ NATH vs firm K. B. BASS AND CO; and also AMALGAMATED electricity CO. LTD vs KUTUBUDDIN RAJESAHEB CHANCHA and OTHERS.

( 6 ) HEARD the respective Counsel.

( 7 ) ORDER 23 Rule 1 (3), after amendment, reads as follows: "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 ciaim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. " in particular Order 23 Rule 3 (b) contemplates only terms to be fixed. The words are "it may on such terms as it think fit. " The supreme Court had an occasion to consider the purport of the said rule in the above cited decision in M/s. O HULAS RAI BAIJ NATH vs firm K. B. BASS and CO; whether the Apex Court has observed as follows:"the language of Order 23, Rule 1, sub-Rule (1), C. P. C. , gives an unqualified right to a plaintiff to withdraw