The court should be slow and cautious to exercise the powers under Order 23, Rule 1 and permit a defeated plaintiff to withdraw his suit with liberty to file a fresh suit and re-agitate the matter over once again.

ORDER : The defendants in a suit which was permitted to be withdrawn at the appellate stage with liberty to file a fresh suit are the petitioners before me. The suit was filed by the plaintiff for a declaration and injunction on the averments inter alia, that in an earlier partition suit wherein there was a compromise decree Ex. A-2 the suit property fell to the share of the plaintiff, and that while the plaintiff had been in separate and exclusive possession of the same, the defendants without any right threatened to cut and carry away the crops. According to the defendants amongst other pleas it was contended that the suit property was not divided. The trial Court came to the conclusion that the plaintiff had failed to prove his exclusive right to the properly In the plaint, the suit properties are given survey numbers. In correlating it with a compromise decree the plaintiff referred to an item of the extent of 8 acres and 37 cents shown as Sowdabavi Kindamadi east of the Sowdabavi well. The trial Court came to the conclusion that this item on its view of the evidence was in Konda palayam village whereas according to the plaintiff the suit property was in Karikal village. On appeal by the plaintiff, on an application evidently made to the court by the plaintiff the learned Subordinate Judge has taken the view that the suit has failed by reason of the discrepancy which is a defect formal in nature. I am unable to understand how the learned Subordinate Judge has considered the failure of the suit as on a technical or formal ground. It cannot be ignored that the suit is for injunction by a party allegedly in exclusive possession. The plaintiff himself in such a case would have no difficulty in setting out the property correctly and describing it accurately in the plaint. One may therefore presume that the plaintiff has attempted to give all such particulars as he could give with reference to the properly which according to him was in his exclusive possession and was attempted to be trespassed upon. The difficulty he found was in correlating the plaint item with the partition decree under which he claimed exclusive title to the same. If by reason of any inaccurate description of the property in the plaint, correlation became difficult the proper thing would be to apply to the court to amend the schedule to the plaint so to describe it properly according to the realities. If in spite of rectification of the description the plaintiff cannot correlate the suit property with any item which has been allotted to him exclusively in the compromise decree, then the plaintiff fails on merits. If the

description in the plaint is accurate and the difficulty is in the description of the same property in the compromise decree then it is a matter for evidence. According to the trial Court, the plaintiff has failed to correlate the item in the suit with the Hems which had been exclusively allotted to him in the partition. One cannot say that the suit in the circumstances has failed in the trial court by reason of any formal defect. The appellate court should be slow and cautious to exercise the powers under O. 23, R. 1 and permit a defeated plaintiff to withdraw his suit with liberty to file a fresh suit and re-agitate the matter over once again. When the defect, if any, could be cured by an amendment, the court should not ordinarily permit the withdrawal of the suit with liberty to institute a fresh suit.

2. Learned counsel for the petitioner referred me to the decision of this Court in Venkata v. Nimmakayala, AIR 1949 Mad 441, where Panchapakesa Ayyar, J. observes :

"Any court allowing a party to withdraw from a suit with liberty to file a fresh suit at such a late stage as this, after arguments also have been addressed in appeal, is bound to give satisfactory reasons falling under O. 23, R. 1, C.P.C. The lower appellate court has undoubtedly failed to do so. It is not clear what it meant by saying that the suit was defective for want