JUDGMENT :

Shampa Sarkar, J.

1. The revisional application arises out of an order dated February 6, 2023, passed by the learned Civil Judge (Junior Division) 3rd Court at Diamond Harbour, in Title Suit No.91 of 2007. The petitioners, as plaintiffs, filed the said suit.

2. By the order impugned, the learned court rejected an application dated May 28, 2022, filed in connection with the Title Suit No.91 of 2007. The petitioner prayed for withdrawal of Title Suit No.91 of 2007. The petitioners filed an application for reconsideration of the order dated August 29, 2018, by which Title Suit No.91 of 2007 and Title Suit No.86 of 2010, were being analogously heard. The petitioners also filed another application for stay of Title Suit No.86 of 2010. All the three applications were taken up together and rejected with cost of Rs.1000/-.

3. Learned Advocate for the petitioners submitted that Title Suit No.91 of 2007 was instituted for declaration of right, title and interest in a share of the suit property and permanent injunction.

4. Defendant Nos.1, 2 and 3 entered appearance in the said suit and filed their written statement. The petitioners filed an application before the learned court on withdrawal of Title Suit no.91 of 2007. The petitioners stated that they had instituted another suit being Title Suit No.94 of 2022, before the learned Civil Judge (Senior Division), Diamond Harbor and had prayed for partition and permanent injunction against the contesting defendants some other reliefs.

5. Learned Advocate for the petitioners submitted that Order 23 Rule 1 of the Code of Civil Procedure permitted the plaintiffs to abandon either, part or whole of the claims, or the suit, against the defendants. Thus, there was no reason as to why the learned court should not have allowed withdrawal of the suit, when the plaintiffs did not want to pursue their reliefs claimed under Title Suit No.91 of 2007. It appears from the record that the defendants had also filed one title suit being Title Suit No.86 of 2010, for declaration of title and permanent injunction.

6. The learned court rejected the application for withdrawal of the suit on the ground that Title Suit No.91 of 2007 was proceeding analogously with Title Suit No.86 of 2010 and the evidence of the PWs had already been concluded. The suit was pending at the stage of DW and the plaintiffs/petitioners suddenly felt the need to file a partition suit after prolonged 15 years.

7. The learned court held that when Title Suit No.94 of 2022 was filed for partition before the learned Civil Judge (Senior Division), Diamond Harbour, no permission was obtained from the court. The plaintiffs could not be permitted to withdraw the earlier suit after filing the later suit. The intention of the plaintiffs were doubted by the learned court and as such the learned court was of the opinion that the Title Suit No.91 of 2007 could not be allowed to be withdrawn upon recalling the order directing analogous trial of the two suits. The hardship that would be caused to the defendants could not be compensated with money and in the absence of any formal defect, the question of allowing withdrawal of the suit, would not arise.

8. The learned court further found that the plaintiffs wanted to withdraw the suit to cover up a defect or a lacuna, which was not permitted in law.

9. The learned court decided the propriety in filing the partition suit and also the factual aspects. The court found that all the defendants were not even parties to the partition suit being Title Suit No.94 of 2022.

10. Petitioners relied on the decisions of M/s Hulas Rai Beij Nath vs. Firm K. B. Bass and Co., reported in AIR 1968 SC 111, Bank of Rajasthan Ltd. vs. Hajarimal Milap C. Surana and Ors., reported in (2005) 10 SCC 238, J.B. Patnaik vs. Bennett Coleman & Co. Ltd., reported in AIR 1990 Orr 107. The petitioners contented that no vested right in favour of the defendants had come into existence and there was no ground why the court should refuse to all