1. An order passed on an application under Order XXIII, Rule 1 (3) of the C.P.C., granting permission to withdraw the suit at the fag end of the trial, with liberty to file a fresh suit in respect of the same subject-matter, is challenged in this writ petition filed under Article 227 of the Constitution of India. The petitioner herein is the first defendant and the respondent is the sole plaintiff in the original suit.

2. The Original Suit O.S.No.395/2007, was one for an injunction restraining the defendants from trespassing into the plaint schedule property. It was alleged in the plaint that the plaintiff is the owner in possession of the plaint schedule property by virtue of Sale Deed No. 274/1996 and when the plaintiff started construction of a compound wall, the defendants obstructed the same claiming that the plaint schedule property is in possession of the Govt. U.P.School, Thengode, for the last so many years. Defendants 1 to 4 and 6 filed written statement contending that the plaintiff’s prior owner Smt. Annie Kurian had no such property, when she executed sale deed in favour of the plaintiff. The entire property, which she owned and possessed had already been gifted to her brother Powels Kurian. But it was further stated in the Sale Deed that though entire 2.62 Acres are stated to be gifted, in fact only 1 Acre and 52.5 cent alone was gifted and she is the owner in possession of 62.825 cents of land. Thus the attempt was to grab Government land under the cover of the suit.

3. On the basis of the pleadings, the court below framed five issues on 3-10-2008. The 1st issue is whether the suit has been properly valued and requisite court fee was paid. The 2nd issue is whether the plaintiff has title over the plaint schedule property? The 1st issue was taken as a preliminary issue and the learned Sub Judge passed an order finding that the suit is not properly valued and directed the plaintiff to pay court fee under Section 27(a) instead of Section 27(c) of the Court Fees Act. This order was challenged before the High Court in W.P.(C) No.4780/2009. This Court set aside the order that was under challenge and directed the court below to pass appropriate orders on the issue of valuation after deciding the application filed by the plaintiff for deleting the 2nd issue relating to title of the property. Thereafter the court below dismissed the application for deleting the issue relating to title and directed to pay court fee under Section 27(a) of the Court Fees Act.

4. The suit was eventually included in the special list for trial to 20-2-2010. On 24-2-2010, the case was taken up for trial. The plaintiff examined 3 witnesses and marked Exts. A-1 to A-41. Then the case was adjourned to 27-2-2010 for defendants’ evidence. The 1st defendant was examined as D.W.1 and Exts. B-1 to B-6 were marked. The evidence was closed on that day and the case was posted for hearing to 1-3-2010. On that day, the plaintiff filed I.A.No.1869/2010 (Ext. P-7) seeking permission of the court to withdraw the suit with liberty to file a fresh suit. Then the case was adjourned to 2-3-2010 for filing counter and hearing. Defendants 1 to 4 and 6 filed. Ext. P-8 counter-affidavit opposing Ext. P-7 application. On 2-3-2010, the court below allowed Ext. P-7 application seeking permission to withdraw the suit with liberty to file a fresh suit. Ext. P9 order permitting the plaintiff to withdraw the suit with liberty to file a fresh suit is challenged in this writ petition on various grounds. The impugned order Ext. P-9 in full length is given below:

“Respondent filed objection stating that formal defect stated by the petitioner does not make the failure of suit as there was issues framed. Petitioner contended that the matter is to be prosecuted in a proper manner for the purpose of title. Hence petitioner is allowed to withdraw the suit with the liberty to file fresh suit, with cost of defendants”.

5. I heard Sri P.K. Revi Sanker, the learned counsel for t