The court cannot split the plaintiff's prayer for withdrawal of the suit and permission to file a fresh suit under Order XXIII, Rule 1(2). The court must either reject the entire prayer or allow the entire prayer.

K. N. WANCHOO, C. J.

( 1 ) THIS is a revision under Section 115 of the Code of Civil Procedure by Naru and arises in the following circumstances : naru filed a suit against his adoptive mother and three sets of defendants. So far as the first two sets of defendants were concerned, he prayed for possession of certain properties which had been alienated by his adoptive mother. So far as the third set of defendants Nos. 6, 7 and 8 was concerned, he prayed for possession of house said to have been sold to these three defendants. The case of these three defendants, however, was that the house in question belonged to them and had been mortgaged by their ancestors to the ancestors of the plaintiff and all that these defendants had done was to redeem the house.

( 2 ) THE suit went on against the three sets of defendants and when it was about to come to an end, an application was made on 21-5-1954 by the plaintiff for permission to withdraw the suit against defendants Nos. 6, 7 and 8 with liberty to file a separate suit. It was said on his behalf that he had made a mistake in treating this property, which had been mortgaged in the family as the property of the family and there was, therefore, complication in the suit and he had been unable to look after it properly and there were other formal defects. He, therefore, prayed that he might be permitted to withdraw the suit against these three defendants with liberty to bring a fresh suit.

( 3 ) THE learned Munsif permitted the withdrawal of the suit, but refused to give permission to bring a fresh suit. Aggrieved by this order, the present revision was filed by the plaintiff-applicant and his case is that the Munsif should either have dismissed the application in toto and carried on with the suit as it was or should have allowed withdrawal with liberty to bring a fresh suit and that it was not within the power of the Munsif to break up his application into two parts and allow the part relating to withdrawal and refuse the part relating to the prayer for liberty to bring a fresh suit.

( 4 ) I am of opinion that there is force in this contention of the applicant. Order xxiii, Rule 1 deals with withdrawal of suits. Sub-rule (1) of that rule gives the plaintiff an option to withdraw a suit or abandon part of a claim. Under this sub-rule, the plaintiff may withdraw any part of the claim and there are no conditions attached to such withdrawal. Then comes Sub-rule (2) which provides that if certain conditions are satisfied, the Court may grant the plaintiff permission to withdraw the suit or abandon part of the claim with liberty to bring a fresh suit in respect of the subject-matter so withdrawn. It seems to me that where the plaintiff applies under Order XXIII, Rule 1 (2) what he wants is that he should be permitted to withdraw the suit with permission to institute a fresh suit. If a plaintiff merely desired to withdraw a suit all he had to do is to make an application under Sub-rule (1 ). Therefore, when an application is made under Sub-rule (2), it is not open to the Court to treat it as if it is an application under Sub-rule (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit. I am of opinion that the prayer under Sub-rule (2) must be treated as one whole and the Court may either reject the entire prayer, namely refuse the withdrawal of the suit with liberty to bring a fresh suit or allow the entire prayer i. e. permit the withdrawal of the suit with liberty to bring a fresh suit. The reason for this is obvious. If the plaintiff wants to withdraw a suit with liberty to file a fresh suit and if this prayer is refused, he will go on with the suit as it is and the suit will be tried out to a finish. But if, on the other hand, the Court grants him the permission to withdraw but refuses the permission to institute a fresh suit, the result would be that the plaintiff would be deprived of carrying on with the suit