WHERE THE COURT IS NOT GRANTING LIBERTY TO FILE A FRESH SUIT, ALL THAT IT CAN DO IS TO DISMISS THE APPLICATION PRAYING FOR WITHDRAWAL OF THE SUIT WITH LIBERTY TO FILE A FRESH SUIT AND NOT TO DISMISS THE SUIT.

( 1 ) THIS review application has been filled for the review if my order dt. 21. 3. 72 by which the revision petition filed by the respondent was allowed and ihe entire suit filed by the applicant with regard to all the prayers in the suit WAS dismissed as withdrawn.

( 2 ) THE first objection raised on behalf of non-applicant is that application has been filed beyond prescriced period of 30 days. [after giving details of dates, the Judgement proceeds] It seems to me that there was not only one day s delay in the filing of the review application but the applicant also was not very vigilant in complying with the requisitions of the office within the time allowed to him. If the matter had rested there, I would have been reluctant to condone the delay because there does not appear to be sufficient justification for the delay in refiling the application within the time allowed by the office and if the dates of refiling are to be taken into consideration the review application will undoubtedly be hopelessly time-barred.

( 3 ) HOWEVER, on hearing the matter on merits, I feel that the order made on March 21, 1972 with regard to the disposal of the suit was not an order in accordance with law and, therefore, inasmuch as it is going to be binding on the subordinate Courts and relates to the interpretation of sub-rule (2) rule 1 of Order XXIII of the Code of Civil Procedure, I will go into the merits of the matter in exercise of the inherent powers of this Court because there are likely to be large number of applications of the same nature as the application that was filed in the trial court in this matter. What had happened was that the evidence of the parties had been concluded in the trial Court and the suit was only to be argued on the merits when the applicant-plaintiff filed the application under sub-rule (2) of rule 1 of Order XXIII of the Code of Civil Procedure to withdraw the suit filed by him with liberty to file a fresh suit. By his order dated July 29, 1968 the Additional District Judge who was hearing the suit permitted the applicant to withdrawn it in respect of part of the relief but found that there was no good ground for permission to institute a fresh suit and he, therefore, dismissed that part of the suit as withdrawn.

( 4 ) IN revision it was held by me that the grounds which were given by the applicant for withdrawing the suit with liberty to file a fresh suit were not grounds as are contemplated by sub rule (2) of rule 1 of Order XXIII of the Code of Civil Procedure and I further held that the Additional District Judge was cot Justified in permitting the withdrawal of the suit with regard to the part of the relief with liberty to file a fresh suit on the same cause of action. Then I said, In the result, the order of the Additional District Judge is set aside, the revision is accepted and the entire suit with regard to all the prayers shall be dismissed as withdrawn. . . "

( 5 ) I think there is substance in the argument of the applicant that in a case where an application is made under sub rule (2) of rule 1 of Order XXIII of the Code for withdrawing it with liberty to file a fresh suit on the lame cause of action and the Court does not grant the requisite liberty, the order to be made is to dismiss the application and not to dismiss the suit. It is not necessary to dilate too much on the subject because it seems so well covered by the authorities. The first case to which reference might be made is reported in Naru v. Mr. Noji and others (A. I R. 1959 Rajasthan 53) where the principle has been well expressed in the following words :

"if a plaintiff merely desires to withdraw a suit all he has to do is to make an application under sub r. (1) of R. I. of 0. 23. But where he applies under sub-rule (2) what he wants is that he should be permitted to withdraw the suit with permission to institute a fresh suit. Therefore, when an application is made under sub-rule (2), it is not open to the court to. treat it