The discretion of the Trial Court in permitting the plaintiffs to file a fresh suit and the appropriate course of action in the withdrawal of a suit under Order 23, Rule 1 of Civil Procedure Code.

A.S. BOPANNA, J.—The petitioners are before this Court assailing the order dated 02.01.2010 passed in O.S. No. 129/2006.

2. Heard the learned counsel for the parties and perused the petition papers.

3. The petitioners herein are the plaintiffs in O.S. No. 129/206. The suit in question is filed seeking for partition and separate possession in respect of the suit schedule properties. The defendants had appeared and filed their written statement. One of the contentions urged in the written statement is that there was a prior partition and, therefore, the shares sought for by the plaintiffs in the suit would not be sustainable. In view of such contention urged by the defendants, the plaintiff was of the view that it would be appropriate to withdraw the suit and file fresh suit seeking protection in respect of the property which, according to the defendants, had been assigned to her share. It is in that context, an application under Order 23, Rule 1 of Civil Procedure Code was filed seeking leave to withdraw the suit and to institute a fresh suit on the same cause of action. The Trial Court, while disposing of the said application, by its order dated 02.01.2010, has refused to grant liberty to file a fresh suit by withdrawing the instant suit, but has allowed the application and dismissed the suit as not pressed. In my view the course adopted by the Trial Court is not justified inasmuch as it was, no doubt, open for the Trial Court to reject the application in its entirety when it was of the view that liberty could not have been granted to the plaintiff to institute a fresh suit on the same cause of action, instead of the same, the Trial Court has dismissed the suit and has non-suited the plaintiff in all respects. Insofar as the Trial Court exercising its discretion of not permitting the plaintiffs to file a fresh suit, to the said extent it would be justified. Therefore, the appropriate course would be to dismiss the application filed under Order 23, Rule 1 of Civil Procedure Code and to allow the suit to proceed further. I am fortified in my view by an earlier judgment of this Court in the case of K.Y. Siddaraju vs. General Manager, Southern Railway, Madras, reported in 1999 LAWS (KAR)-2-43.

4. In that view of the matter, the order dated 02.01.2010 is set aside. Consequently, the application filed under Order 23, Rule 1 of Civil Procedure Code is dismissed. The suit in O.S. No. 129/2006 is restored to the file of the Principal Civil Judge (Sr. Dn.), Ranebennur, to proceed further with the suit in accordance with law. Since the parties are represented before this Court, they shall appear before the Trial Court on 10.12.2012 as the first date of appearance. The Trial Court shall, thereafter, proceed with the matter.

5. Petition is allowed in part in the above terms.