The main legal point established in the judgment is that while withdrawal of a suit may be permissible, granting liberty to file a fresh suit on the same cause of action may not be correct in law if the petitioner has unsuccessfully attempted to amend the plaint previously.

The revision petitioner/respondent/defendant has filed this present civil revision petition as against the order dated 19. 2007 in I.A.No.929 of 2007 in O.S.No.431 of 2005 passed by the learned Principal District Munsif-cum-Judicial Magistrate, Erode in allowing the application filed under Order 23 Rule 1 and Section 151 of CPC by granting permission to the respondent/petitioner/plaintiff to withdraw a suit O.S.No.431 of 2005 with a liberty to file afresh suit on the same of cause of action.

2. The trial Court, while passing orders in I.A.No.929 of 2007 on 19. 2007 has inter alia opined that the respondent/ petitioner/plaintiff in order to prove the existence of 150 feet pathway in the plaint schedule property, an opportunity will have to be provided to him and therefore, the reason assigned by him in his affidavit is sufficient and resultantly allowing the application by observing that suit is dismissed as withdrawn as to file a fresh suit on the same cause of action.

3. According to the learned counsel for the revision petitioner/respondent/defendant, the order of the trial Court in allowing I.A.No.929 of 2007 filed under Order 23 Rule 1 of CPC is illegal one and the reason assigned by the trial Court in permitting the respondent/petitioner/plaintiff to withdraw the suit is an erroneous one and as a matter of fact that an application to withdraw the proceedings can be granted only in the event of suit likely to be filed a same formal defect and more over, the trial Court has not appreciated the fact that already the respondent/ petitioner/plaintiff has filed an application for amendment and made an Endeavour to introduce new set of facts and the same has been rejected by the trial Court as it changes the cause of action, this Court has also upheld the trial Courts order in CRP(PD) No. 1593 of 2006 dated 26. 2007 and since the trial Court has not looked into this aspect in a proper perspective, the same has resulted in cause of justice being defeated and therefore prays for allowing the civil revision petition in furtherance of substantial cause of justice.

4. Expatiating his submission, the learned counsel for the revision petitioner cites the decision reported by the Honble Supreme Court in K.S. Boopathy v. Kokila(2000(5) SCC 458 at 459) wherein it is held that the provision in Order 23 Rule 1 CPC is an exception to the common law principle of non-suit and Sub Rule(1) gives an absolute liberty to the plaintiff, where as under Sub Rule(3), the Court has the discretion to grant leave or not and further the discretion of the Court is to be exercised with caution and circumspection and all aspects of the matter are to be examined, including the desirability or otherwise of permitting a fresh round of litigation on a cause of action which has already been agitated and such examination is all the more important where the application under Or.23 Rule 1(3) is filed at the appeal stage and the Courts time already utilized should not be wasted.

5. Added further the learned counsel for the revision petitioner refers to the order of this Court dated 26. 2007 (passed in C.R.P(PD) No.1593 of 2006 as against the order passed in I.A.No.958 of 2006 in O.S.No.431 of 2005 on the file of the trial Court dated 19. 2006) wherein this Court has observed as follows:

"It is seen from the records that earlier a commissioner was appointed and he has submitted his report stating that there is a pathway measuring about 75 sq.ft leading to the Well from the petitioners land. The petitioner has filed an application to amend the plaint to the effect that the actual length of the pathway is 150 sq.ft and due to typographical error, it has been wrongly mentioned as 75 sq.ft in the plaint. But the plaintiff has not produced any documents to prove the said facts.

6. In response, the learned counsel for the respondent/petitioner/plaintiff submits that the respondent has filed I.A.No.929 of 2007 under Order 23 Rule 1 and Section 151 of CPC prayin