The main legal point established in the judgment is that when a plaintiff seeks to withdraw the suit with liberty to file a fresh suit on the same cause of action, the court must consider allowing the withdrawal and filing of a fresh suit, subject to objections raised by the defendants, including the law of limitation.

The revision petitioners are the plaintiffs in O.S.No.367 of 1997 on the file of District Munsif of Gobichettipalayam. They have filed an application under Order 23 Rule (1)(3) and Section 151 CPC seeking permission of the court to withdraw the suit and to file fresh suit on the very same cause of action and the said petition was allowed to the extent that the petitioners/plaintiffs were permitted to withdraw the suit. But however, permission to file fresh suit on the very same cause of action was refused. Aggrieved by the same, the plaintiffs have preferred this revision petition.

2. Heard the learned counsel for the petitioners and the respondents.

3. In the petition filed before the trial court it is stated that the suit was filed with regard to a cart track, which according to the petitioners is running in SF Nos.679/1,679/2, 679/3 is on the eastern side of the cart track. The respondents 1 and 2 never used the suit cart track. The physical features will also clearly show that the suit cart track is only in S.F.Nos.679/1 and 679/2. Further the respondents in their written statement stated that the suit cart track is running only in S.F.Nos.679/3. The plaintiffs filed application for the appointment of a commissioner to find out the exact position of the cart track. The advocate-commissioner was appointed and also filed report stating that the suit cart track is running in S.F.Nos.679/1, 679/2 and 679/3 also. The plaintiffs came to know about the same only on the report filed by the advocate commissioner. Pursuant to the same, the plaintiffs filed petition to amend the plaint for the inclusion of S.F.No.679/3 and the same was dismissed. The plaintiffs also preferred C.R.P.No.505 of 2003 before this court and it was also dismissed. The plaintiffs have stated that if the suit is proceeded with as it is, there is every possibility to dismiss the suit, as S.F.No.679/3 was not included. The mistake committed was beyond their control and they bonafidely believed that the suit cart track is running in S.F.Nos.679/1 and 2. The said defect could be rectified only by withdrawal of the suit and file a fresh suit on the same cause of action.

4. The defendants have resisted the said petition by filing counter, wherein it is stated that the plaintiffs were unnecessarily dragging on the proceedings up to the High Court and stated that they have no objection in allowing the petition with costs.

5. But however, the trial court allowed the petition partly granting permission to the plaintiffs to withdraw the suit, but permission to file fresh suit on the same cause of action was refused on the ground that the plaintiffs have already filed an application for amendment, which was dismissed and the revision filed by the plaintiffs was also dismissed and therefore, the prayer to withdraw the suit and to file a fresh suit on the same cause of action could not be granted.

6.Learned counsel for the petitioners would contend that the plaintiffs have been under the bonafide impression that the suit cart track is running in S.F.Nos.679/1 and 679/2, but the second defendant in his statement had pointed out that the suit cart track claimed by the plaintiffs is running in S.F.Nos.679/3 and the same has been used by defendants 1 and 2. Thereafter the plaintiffs have filed an application to amend the plaint to include S.F.No.679/3 and the same was dismissed. The plaintiffs also preferred a revision in CRP.No.505 of 2003 and the said revision was also dismissed on the ground that the plaintiffs are seeking new relief in respect of S.F.No.679/3 and if the amendment is allowed, it will amount to change the character of the suit. Only in the said circumstances, the plaintiffs left with no option but to file an application for withdrawal of the suit and also sought permission of the court to file a fresh suit on the same cause of action. Learned counsel for the petitioners would contend that there is no remedy available for the plaintiffs under law, exce