The discretion to allow withdrawal with permission to file a fresh suit should be exercised based on sufficient grounds and special circumstances, considering the time and resources already invested in the case.

1. Petitioner has filed present revision petition against the order of court below thereby challenging the order dated 3.12.2015, by virtue of which his application filed under order 23 Rule 1 (3) CPC for withdrawal of suit with permission to file fresh suit before court, has been dismissed.

2. In memo of revision petition it has been stated that the reasons mentioned for withdrawal of case/suit is on the basis of misjoinder of parties, contradictory pleading and a vital formal defect due to which petitioner/plaintiff may fail in suit. That it is pertinent to reproduce the para (8) of the plaint which has compelled the plaintiff (Petitioner) for withdrawal of the suit. In Para (8), of application filed before court below for withdrawal of suit it has been stated That since the land in question measuring 1 kanal 1 marla bearing khasra No. 676 situated at K.P. Bagh is recorded in the possession of the plaintiff in the revenue records, the defendants are forcibly going to construct a tower on the same, the defendants are thereby going to dispossess the plaintiff from the said land. The defendants have already constructed plinth forcibly on a portion of the said land a few days before institution of the suit and this way they have physically dispossessed the plaintiff from the same. The defendants are going to construct the said tower over a portion of 11 marlas of the land.

3. That above para (8) in the plaint was inserted by way of amendment, as the suit of the petitioner was simple injunction suit, in other words due to inadvertence of the advocate the plaint has become contradictory one with defects. That plain reading of para (8) of the plaint, the existence and pendency of injunction suit now amended has totally abrushed it as if no suit was pending, the amendment should have been for demolition of the tower by issuance of mandatory injunction. But ill drafting on the basis of ill advice of the advocate, the suit of the petitioner was made defective one, as such the plaintiff has to fail in the suit in this situation.

4. That one of the formal defect is misjoinder of parties, as respondent no. 1 is a co-sharer and he was a necessary or proper party in the suit. No doubt petitioner has a right to strike his name by a motion under order 1 Rule 10 CPC, but at the same time the allegations in the plant will remain there and those will adversely affect the plaintiffs cause as such the withdrawal was sought on this account also.

5. That the trial court has totally ignored these aspects of the case and has misinterpreted law in a way to cause inconvenience to the petitioner.

6. That the petitioners application was clear and formal defect with sufficient grounds was clear. But the trial court has rejected the application that misjoinder has not been shown by the petitioner, though it was argued in detail. Secondly the ld trial did not appreciate the para (8) of the plaint a vital defect, on the basis of ill advice of the advocate, otherwise this contradictory is going to cause failure of the suit of the plaintiff (petitioner).

7. That lastly the trial court has given opinion that How he wants to open the suit afresh without stating as to what he want to add in the fresh suit It is submitted that application was for withdrawal one and not amendment, in nut shell the ld trial court has dismissed the withdrawal application considering it as amendment application. As a matter of fact there is no such provision in Order 23 Rule 1 (3) CPC in case of withdrawal, what next the applicant should do. On this ground also the order passed by the ld trial court is not sustainable.

8. That the contents of the withdrawal application were elaborated and explained by arguments, but the trial court has not appreciated the same. In that situation the trial could should have asked for written arguments, for clarification so as to appreciate the matter in right perspective. That trial court has not even appreciated the law to decide the cause correctl