Withdrawal of the suit at appellate stage has the effect of destroying the rights of the parties.

The Plaintiffs 2 to 5 in the suit are the petitioners herein. The Plaintiffs have filed the suit O.S. No. 728 of 1987 before the Additional District Munsif, Namakkal for declaration and injunction. Before the trial court, both the plaintiffs and defendant have let in oral and documentary evidence. After considering the same, the trial court dismissed the suit. Aggrieved by the judgment and decree passed by the trial court, the petitioners herein have preferred A.S. No. 275 of 2002. Pending appeal, the petitioners have filed I.A. No. 8 of 2002 under Order 23 Rule 1 (3) CPC seeking permission of the Court to withdraw the suit with liberty to file a fresh suit on the same cause of action. After affording opportunity to both sides, the first Appellate Court dismissed the application, which is challenged in this revision.

2. Mr. Valliappan, learned counsel appearing for the petitioners submitted that the first Appellate Court erred in dismissing the application filed under Order 23 Rule 1 (3) CPC without following the principles enunciated therein; that the Court below failed to note that the respondent herein claims title from one Pachaiyammal, wife of Marudhamuthu Udayar and the petitioners herein claim title from Pachaiyammal, Wife of Subbaraya Udayar and the identity in the names of Predecessors in title of both parties was not clarified properly in the suit; that because of the technical omission stands in the way of proper appreciation of points in issue, the petitioners were constrained to file the petition under Order 23 Rule 1 (3) CPC to withdraw the suit with the view to avoid formal defect and for making proper submission and prayed for setting aside the order passed by the first Appellate Court.

3. The learned counsel appearing for the petitioners relied on the decision of this Court reported in (Esanya Madalayam Religions Institution owned by Koviloor Muthuramalingam Gnana Desigar Madalayam, rep. by its Madathipathi Sri-la-Sri Nachiappa Gnanadesiga Samigal Vs. Thiruvannamalai Sevasramam Educational Trust, rep. by its Secretary Dr. B. Subbarayan) 1999 MLJ Volume 2 Page No.360.

In this case, the plaintiff has filed two suits against the defendants for permanent injunction, when the defendants are in possession. The Plaintiff intended to file a comprehensive suit after withdrawing the earlier suits. This Court held that though in the absence of formal defect, if there is sufficient grounds or cause to withdraw the suit, hence leave could be granted by the Court.

4. This revision lies in a narrow campus. The petitioners have filed the application under Order 23 Rule 1 (3) CPC seeking permission of the Court to withdraw the suit and to file a fresh suit for the very same cause of action. Order 23 Rule 1 (3) CPC runs as follows:-

"1. Withdrawal of suit or abandonment of part of claim –

(3) Where the Court is satisfied-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim."

5. Under Clause (b) of Order 23 Rule 1 (3), suit can be withdrawn with a liberty to sue afresh on sufficient grounds. The expression "sufficient grounds" must be read 'ejusdem generis' with clause (a) and a ground to be sufficient ground must be similar or alike to the cause mentioned in Order 23 Rule 1 (3) (a).

6. No doubt, a Court of appeal has power in a proper case to grant permission to withdraw a suit with liberty to file a fresh suit, however, such power should be used very cautiously by a Court of appeal. The Plaintiff/appellant is not entitled, as a matter of right to withdraw his suit and he will not be permitted to do so if the effect of allowing him to wit