Sathiadev, J.

1. Defendant in O.S. No. 1293 of 1984 on the file of II Additional Subordinate Judge, Tiruchirapalli is the petitioner. Plaintiff is the sole respondent. Plaintiff filed the suit based on equitable mortgage and for other reliefs, and at the stage when defendant was examined as D.W.I, he filed I.A. No. 466 of 1987 under Order 23 Rule 1(3) and Section 151, Civil Procedure Code seeking permission to withdraw the suit with liberty to file a fresh suit in respect of the subject-matter of the present suit. The suit was filed by M/s. R.S.S. Vashtrad & Company through one of its partners M.M. Nalavad. He had sworn to before Court that he had filed Exhibit A-2 partnership deed to show that he is a partner of the plaintiff Firm even prior to 10-1-1983, but, however, this fact was not intimated to the Registrar of Firms by the Auditor of the Firm, and that entry has been made in the Register only during the pendency of the suit, and therefore it being a formal defect, which would not go into the root of the matter, he had been advised to file a fresh suit, and therefore, he sought for permission to withdraw the suit with liberty to file a fresh suit.

2. This was opposed by de