The court emphasized that granting permission for withdrawal of a suit with leave to file a fresh suit may result in annulment of a right vested in the defendant or a third party, and would lead to wastage of public time of courts. The petitioner's failure to exercise the right to seek amendment of the plaint and the intention to drag on the proceedings were also highlighted as reasons for dismissing the application.

1. The present Civil Revision Petition is directed against order of the learned Additional District Munsif, Madurai Town dated 25.8.2005, in I.A. No. 955 of 2004 in O.S. No. 1258 of 1995.

2. The petitioner herein and the 2nd respondent herein filed the Suit in O.S.No.1258 of 1995 against the first respondent herein on the file of the Additional District Munsif, Madurai Town for declaration that they are entitled to the suit property and in consequence, restraining the respondent by means of permanent injunction from interfering with their possession and enjoyment of the Suit property by making further construction. In the said Suit, I.A. No. 955 of 2004 has been filed for withdrawal of the Suit with liberty to institute a fresh Suit in respect of the subject matter of the Suit. The same has been dismissed by the learned Additional District Munsif, Madurai Town and the said order is under in the present Civil Revision Petition.

3. The averments set forth in the affidavit filed in support of the said Application under Order 23, Rule 1(3) and Section 151, C.P.C. for withdrawal of the said Suit are extracted below:

“The respondent/defendant had filed a Written Statement claiming that the suit property is being used as a common pathway by the petitioners and the respondent. He claims to have purchased his property by a sale deed; but he does not give the survey number in the description of property. We have mentioned survey number 140/9. In the re-survey number, different survey numbers have been given. The different boundaries mentioned in the description of property were the boundaries that existed long before as per the old sale deed. In view of the difference in survey number and boundaries, we have pleaded that the defendant is trying to put up unauthorised construction in the Suit property to extend his house; but on verification of the survey map, it is found that the construction of his house itself is in our survey number. In view of the above said circumstances, there is likely to be some confusion fend consequent technical defect. So, in order to avoid such technical difficulty and to give a correct picture regarding the Suit and the suit property, it becomes just and necessary that this Suit has to be withdrawn and fresh Suit has to be filed in respect of our property. The respondent/defendant cannot have any valid objections for the withdrawal of the Suit and for filing of a fresh Suit in respect of our property.”

4. The first respondent has filed the counter opposing the said Application and in that, it has been stated that the petitioners in that Application have not stated about the present survey number and its boundaries. Further, if the case of the petitioners therein is true and genuine, they could have taken necessary steps for amendment of the plaint. After considering the relevant facts and circumstances of the case, the learned Trial Judge has dismissed the Application.

5. Mr. T.R. Jeyapalan, learned counsel for the petitioner, has vehemently contended that in view of certain mistake crept in with regard to the boundaries as well as the survey number, it has necessitated the petitioner to file such Application for withdrawal of the Suit. He has further pleaded that if the Suit is withdrawn with liberty to file a fresh Suit, no prejudice will be caused to the first respondent.

6. In support of his contention, he has cited the decision of the Honourable Supreme Court in Bariram v. Gaind, AIR 1982 SC 789. In the said decision, it has been held as under:

"Having considered the fact that non-pleading may prove a technical impediment and may result in the dismissal of the Appeal which may impede a fresh adjudication if a point is to be made though belated, we consider it just and proper in the interests of justice to permit the appellant-plaintiff to withdraw the Suit with liberty to file a fresh Suit as stated hereinabove."

The said decision will not be applicable to the facts and circumstances of the present