Prayer for withdrawal and liberty to file a fresh suit cannot be separated.

(Civil Revision Petition filed under Article 227 of the Constitution of India, against the order dated 20.09.2004 passed in I.A.No.10477 of 2004 in O.S.No.12449 of 1996, as stated therein.)

This Civil Revision Petition is directed against the Order dated 20.09.2004 passed in I.A.No.10477 of 2004 in O.S.No.12449 of 1996 by the VII Assistant Judge, City Civil Court, Chennai, partly allowing the Petition filed under Order 23 Rule 1(3) C.P.C and declining to grant leave to file a fresh suit. The Plaintiff is the Revision Petitioner.

2. Claiming that she is the adopted Daughter of Sankara Narayana Pillai, the Plaintiff has filed the Suit in O.S.No.1826 of 1993 before the High Court for Partition and Separate possession of "A" and "B" Schedule Property. "A" Schedule property consists of six items. Item (vi) of "A" Schedule property is situated at Chennai. Hence, the Plaintiff has filed the Suit after obtaining leave to sue. When the Suit was pending, due to enhancement of pecuniary jurisdiction of Subordinate Courts, the Suit was transferred to City Civil Court, Chennai and renumbered as O.S.No.12449 of 1996. Resisting the Suit, the Defendants have filed the Written Statement. The Trial commenced and the Parties also adduced evidence.

3. I.A.No.10477 of 2004:- At the stage, when the Suit was pending Part-heard stage, the Plaintiff has filed this Application under Order 23 Rule 1(3) C.P.C stating that the Defendants have taken a defence that the properties situated at Madras does not belong to Sankaranarayana Pillai and that the Court has no territorial jurisdiction to try the Suit. The Plaintiff sought to withdraw the Suit contending that all the Plaint Schedule Properties except Item No.(vi) in "A" Schedule Properties (situated at Madras) are situated at Tirunelveli and that during the final decree proceedings, the Subordinate Court, Tirunelveli only would be in a better position to appoint Commissioner to effect partition of the Suit Properties. Hence, the Plaintiff has filed the Application seeking to withdraw the Suit with liberty to file a fresh suit on the same cause of action before the Sub-Court, Tirunelveli.

4. The Defendants have strongly resisted the Application by filing elaborate Counter Statement contending that the Plaintiff has purposely included Item No.(vi) of "A" Schedule Property under false pretext that the family property is also situated at Chennai. The Third Defendant had already taken out an application for dismissing the Suit on the ground that Item No.(vi) in "A" Schedule Property does not belong to Sankaranarayana Pillai and that the City Civil Court, Chennai has no territorial jurisdiction to entertain the Suit and determine the issues.

5. The Trial Court partly allowed the Petition to the extent of permitting the Plaintiff to withdraw the Suit. At the same time, the Trial Court partly dismissed the Petition regarding liberty to file a fresh suit before Sub-Court, Tirunelveli finding that the Application has been belatedly filed at the part heard stage. Learned Judge was of the view that it would not be appropriate to grant leave to file Fresh Suit, at the distant point of time.

6. Aggrieved over the Impugned Order, the Plaintiff has preferred this Revision Petition. Respondents are yet to be served. However, on seeing the Advertisement in the Paper said to have been issued by the Revision Petitioner/Plaintiff, it is stated that only the Third Respondent is the main contesting party. Under such circumstances, notwithstanding the non-service of Notice to the Respondents 1, 2 and 4, the main Revision Petition itself has been taken up for final hearing.

7. Assailing the Impugned Order, learned counsel for the Revision Petitioner / Plaintiff has submitted that the Trial Court erred in partly allowing the Petition without granting liberty to file a fresh suit on the same cause of action. It is submitted that the Court below could have very well dismissed the Petition entirely and the Plaintiff would