If withdrawal of suit would result in nullifying findings in favour of defendants, then such permission for withdrawal of suit cannot be granted.

(Prayer: Civil Revision Petition filed under Section 115 C.P.C. to call for the records and set aside the decretal order and fair order in I.A.No.80 of 2005 in A.S.No.71 of 2004 dated 21.03.2005 on the file of the learned Subordinate Judge, Kallakurichi.)

Civil Revision Petition is filed against the order dismissing the petition for withdrawal of the suit.

2. The petitioner/plaintiff filed a suit against the respondents/defendants for declaration of his title and for permanent injunction with respect to the suit properties in O.S.No.623 of 1999. The suit was partly decreed and partly dismissed. Aggrieved against the judgment and decree in O.S.No.623 of 1999, the petitioner/plaintiff preferred an Appeal. Pending appeal, the petitioner/plaintiff filed an application to withdraw the suit with liberty to file a fresh suit with the same cause of action. The reason assigned in the affidavit filed in support of the petition was that there is flaw in the description of the properties in the original suit as well as in the appeal and that even if the appeal is decided in favour of the petitioner/plaintiff, it will not be fruitful to him. The decree of the Lower Court with the existing description of property will not yield any solution to the dispute. The flaw caused is out of divine reason and beyond his control. Therefore, he has sought for leave of the Court to withdraw the suit with liberty to file a fresh suit with the same cause of action.

3. The respondents/defendants resisted the said application on the ground that the application is not maintainable and that having failed in the Lower Court, it is not open to him to deprive the benefits of the judgment and findings rendered in the suit.

4. The Lower Court relying on the judgment reported in K.S. Bhoopathy and others vs. Kokila and others (2000 (III) CTC 558), declined to grant permission to the petitioner herein to withdraw the suit with liberty to file a fresh suit with the same cause of action. Aggrieved against the said decision, the present Revision Petition is filed.

5. Mr. V. Bhiman, learned counsel for the petitioner/plaintiff submitted that the mistake crept in the description of the property in the suit is due to the above reasons and that it is always open to the petitioner to withdraw the suit. He further submitted that the Lower Court failed to appreciate that the abandonment of the suit and filing of a fresh suit with the same cause of action will be hit by the principles of resjudicata and that there was sufficient cause for withdrawing the suit.

(i) Placing reliance on Thangapandian and another vs. Sri Muthumariamman Idol, Somarasampettai, represented by the Executive Officer, (1998 (III) CTC 454), learned counsel for the petitioner submitted that if the defect is only formal, like incomplete description regarding boundaries and measurements of the suit property, for a lapse committed at some point of time by the person, who instituted the suit should not be allowed to be perpetuated to the detriment of the Suitor.

In the above case, Sri Muthumariamman Idol, represented by the Executive Officer, instituted the suit for recovery of possession of the suit property based on title. The written statement was filed by the defendant contending that the plaintiff-temple had no title to the suit property. At this stage, it was noticed that the description of the property given in the plaint was not complete either in respect of the boundaries or in respect of the measurements. On the facts of the above case, the Court granted the relief, since it was open to the defendant therein to raise all objections on merits, while defending the suit. No evidence was let in and it was not even taken up for trial.

Whereas in the present case, there has been full fledged trial, the rights of the parties have been decided in respect of the suit claim. The petitioner/plaintiff's title has been declared only insofar as Patta No.531, S.No.41/2A2 to an extent of 0.86.5 hectares a