The main legal point established in the judgment is the discretion vested in the court to permit withdrawal of the suit with liberty to file a fresh suit on the same cause of action, as provided under O.23 R.1 of CPC. The court emphasized the principles of public policy and the need to prevent abuse of the process of law in evaluating the grounds for permitting withdrawal of the suit.

K.A. Mohamed Shafi, J.

1. The defendants respondents in IA No. 1 70/96 in AS No. 4/94 in OS No. 329/92 of the Subordinate Judge's Court, Hosdurg are the revision petitioners.

2. The respondent filed OS No. 329/92 on the file of the Munsiff's Court, Hosdurg against the revision petitioners for permanent prohibitory injunction restraining them from constructing buildings in the plaint B schedule property without leaving an open space of 15 ft. from its northern boundary and in violation of the Kerala Building Rules, and for mandatory injunction to demolish the structures put up in the plaint schedule property.

3. The Munsiff's Court after trail dismissed the suit with costs by judgment dated 18.12.1993. The plaintiff respondent preferred AS 4/94 before the Subordinate Judge's Court, Hosdurg against that decree and judgment. Thereafter the respondent filed OP No. 1044/94 before this Court against the revision petitioner, the State of Kerala, the Commissioner of Hosdurg Municipality and the Station House Officer, Hosdurg Police Station, to issue a wit of mandamus directing the respondents therein not to proceed with the construction work. CMP No. 1866/94 filed by the respondent in that OP for an order of temporary injunction restraining the revision petitioners from proceeding with the construction work was dismissed by this Court by order dated 6.4.1994. Then Writ Appeal No. 851/94 was filed against that order. It was dismissed as withdrawn by judgment dated 27.7.1994. The OP is still pending before this Court.

4. After the withdrawal of the Writ Appeal the respondent filed IA 170/96 in AS 4/94 before the Subordinate Judge's Court for permission to withdraw the suit OS 329/92 and the appeal AS 4/94 with liberty to file fresh suit against the revision petitioners and the Kanhangad Municipality. The lower Court allowed that petition and permitted the respondent to withdraw the appeal and the suit with liberty to file a fresh suit against the revision petitioners and the Kanhangad Municipality, by order dated 26.3.1996. That order is under challenge in this revision petition.

5. O.23 R.1 of CPC gives discretion to the Court to grant permission to the plaintiff to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim when the Court is satisfied that the suit must fail by reason of the some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of the claim.

6. In this case after considering the contentions raised by the revision petitioners and the respondent the lower Court passed the impugned order allowing the respondent to withdraw the suit and the appeal with liberty to institute a fresh suit against the revision petitioners and the Kanhangad Municipality on the same cause of action.

7. It is well settled that the appellate Court is competent to grant permission to withdraw the suit under O.23 R.1 of CPC since an appeal is continuation of the suit. Therefore, the competency and jurisdiction of the appellate Court in this case to grant permission to withdraw the suit under O.23 R.1 of CPC cannot be questioned.

8. The revision petitioners have contended that the trail Court found against the plaintiff respondent herein on all the issues and dismissed the suit with costs after finding that the plaintiff has not come to the Court with clean hands and therefore, the appellate Court is not at all justified in allowing the respondent to withdraw the suit with liberty to file fresh suit for the subject matter on the very same cause of action. According to them, there was absolutely no material on record to have a judicial satisfaction that there are sufficient grounds to permit withdrawal of the suit and the appeal with liberty to file fresh suit on the same cause of action.

9. For permitting the respondent to withdraw the appeal and the suit wi