Plaintiff it can be allowed to adduce more evidence in a fresh suit.

Srinivasan, J.

1. This is an application for permission to withdraw the suit out of which the second appeal has arisen with liberty to file a fresh suit on the same cause of action. The petitioners filed O.S. No. 392 of 1980 on the file of District Munsif, Manamadurai for declaration that the suit property is a wakf property and a consequential injunction restraining the respondents from in any way interfering with the peaceful possession of the plaintiffs. The suit has been filed in a representative capacity by the plaintiffs for themselves and as representatives of Muslim residents of the village of Rajagopuram, Sivaganga Taluk, Ramnad District. Defendants 1 and 2 were impleaded as representatives of the Christian community residents of the said village. The third defendant was the Tamil Nadu Wakf Board. The courts below negatived the claim of the petitioners and dismissed the suit. One of the grounds on which the suit has been dismissed is that the State Government is a necessary party and the non-joinder of the Government is fatal to the suit. On the merits also, the courts found the petitioners failed to establish their claim that the suit property is a wakf property in their possession. The concurrent judgments of the courts below were challenged in the second appeal.

2. The second appeal was heard at some length and on 11.9.1990 the arguments concluded and I directed the matter to be posted for judgment on 14.9.1990. On that date, a representation was made by learned Counsel for the petitioners that he had advised his clients to withdraw the suit and the matter was being considered by the members of the community. He prayed for an adjournment. I adjourned the matter to 21.9.1990. There were some subsequent adjournments at the instance of the petitioners and on 19.10.1990 the present petition for withdrawal was filed. The prayer as it stood at that time was for permission to withdraw the second appeal with liberty to file a fresh suit on the same cause of action. When the matter came up on 24.10.19.90 for orders, learned Counsel for the petitioners realised the mistakes in the prayer and requested for permission to file a supplemental affidavit and correct the prayer in the petition. That was granted and the matter was posted to 26.10.1990.

3. The affidavit filed in support of the petition sets out two grounds in support of the prayer for withdrawal of the suit with liberty to file a fresh suit. The first ground relates to the non-joinder of the Government. It is stated in the affidavit that the petitioners were under the impression that the Government was not a necessary party, as the Government did not object to their possession and enjoyment of the suit property. It is alleged that the petitioners are now advised that the Government should be impleaded as a party, to the suit. The other ground is that the petitioners have been able to obtain four material documents during the pendency of the second appeal which would have considerable bearing on the issues in the suit and in order to produce all the relevant evidence and have a trial, it has become necessary for them to withdraw the suit and file a fresh suit. In the course of arguments learned Counsel for the petitioners added a third ground. He submitted that as the prayer for injunction in the suit was made as a consequence to the prayer for declaration, the petitioners are not in a position to get the relief of injunction on the strength of their possession without reference to the title to the property. According to learned Counsel, the plaint suffers from a formal defect inasmuch as the prayer for injunction was made as a consequential one instead of it being an independent one. The contention of learned Counsel for the petitioners is that the present suit suffers from formal defects such as non-joinder of parties and inarticulate framing of the prayers. It is also contended that there are other sufficient grounds in this case to permit the withdrawal of the