JUDGMENT :

The cardinal question came up for consideration is whether it is permissible to allow an application submitted for withdrawal of suit in part by rejecting the liberty to file a fresh one.

2. This Court in Mary Teacher and Others v. K.J.Varghese (2017 (1) KHC 830) had the occasion to consider as to under what circumstances a withdrawal of suit can be permitted and what are the requirements. But the question involved in the instant case is entirely different. The trial court did not grant liberty to file a fresh suit, though withdrawal was granted overlooking the fact that the application is a conditional one seeking permission to file a fresh one and to allow withdrawal of the pending suit.

3. The mandate under Rule 1 of Order XXIII C.P.C. is resting on the free volition of the plaintiff/s, who have instituted the suit, but subject to the restriction imposed under sub-rule(5), which says that when there are several plaintiffs, the court cannot permit withdrawal of suit or any part of claim unless consented to by all the plaintiffs. Sub-rule(4) of Rule 1 of Order XXIII C.P.C. precludes the party (plaintiff) from instituting a fresh suit in respect of same subject matter or an