Order to withdraw the suit set aside by Revisional Court.

RAMANUJAM, J. :- This matter has been posted before us on an order of reference made by Sethuraman J. as he felt that there was a conflict between the decision of Balasubrahmanyam J. in S. Charles Samuel (died) v. Board of Trustees, Suchindram, (1978) 91 Mad LW 320 and that of Varadarajan J. as he then was, in N. Lakshmanan Nadar v. Board of Trustees. Sucheendram, (Order dt. 10-12-1975 in C.M.P. No.13471 of 1975 in S. A. 1444 of 1972).

2. Before dealing with the point in respect of which a conflict is said to have arisen, it is necessary to set out briefly the facts of this case. The respondent herein filed a suit for declaration of his title to the suit property comprised in S. No. 379/2 Velampatti village and for an injunction restraining the petitioner-defendant from interfering with his possession and enjoyment of the same. The Plaintiff's case was that by means of a registered sale deed dated 24-6-1953, he purchased from one Seeni Thevar the suit property, which was paimash No. 26, subsequently correlated during the survey as S. No. 379/2. The suit was resisted by the defendant on the ground that the suit property comprised in S. No. 379/2 corresponded to old paimash Nos. 69 (p) and 35 (p), that these paimash numbers belonged to his forefathers and that they were allotted to him in a partition between him and his brothers. Thus, the main and substantial controversy before the trial Court was whether S. No. 379/2 in respect of which declaration of title was sought for by the plaintiff corresponded to the old paimash No. 26, as alleged by the defendant. The trial Court has, after analysing the evidence, dismissed the respondent-plaintiff's suit on the main ground that he has not established that the suit S. No. 379/2 corresponded to old paimash No. 26. The respondent-plaintiff has preferred an appeal A. S. No. 6 of 1979, before the Court of the Subordinate Judge, Madurai.

3. During the pendency of the appeal, he has filed an application I. A. 602 of 1979, under O.23, R.1 (3), C. P. C. for permission to withdraw his suit with liberty to file a fresh suit on the same cause of action. In the affidavit filed in support of that application, he stated that steps were taken by him to summon the correlation register from the Assistant Settlement Officer, Madurai, for the purpose of establishing the correlation between the suit S. No. 379/2 and the paimash No. 26, that, the correlation register has not, however, been produced on the ground that it was filed in another case pending before the High Court, that hence he was not in a position to prove the correlation at the trial stage that unless he was able to prove the correlation he could not also succeed in the appeal and that therefore he may be permitted to withdraw the suit, with liberty to file a fresh suit on the same cause of action, after the receipt of the correlation register from the High Court by the Assistant Settlement Officer, Madurai.

4. The said application was opposed by the petitioner-defendant on the ground that it cannot be maintained under O.23, R.1 (3) of the Code as the suit has not failed by reason of some formal defect and that as the suit has been dismissed on merits, it is not open to the plaintiff to seek the permission of the court for withdrawing the suit with liberty to file a fresh suit on the same cause of action.

5. The lower court, however, allowed the application and permitted the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action giving the following reason -

"Thus, as adverted above, the petitioner (the respondent in this civil revision petition) has stated that in spite of his best efforts he could not get the correlation register to substantiate his case and therefore if and when he gets the same he would file a fresh suit on the same cause of action after withdrawing the suit. Therefore I find that there is sufficient reason for granting permission to the petitioner to withdraw the suit in O. S.