Plaintiffs right to withdraw partition suit.

The plaintiff has filed this suit for partition and allotment of his half-share, he being entitled to one half and the defendant the other half, in the property, Odeon Theatre, in Woods Road, Royapettah, Madras. The plaintiff has set out in his plaint the reasons and the circumstances under which he was obliged to file the suit for partition.

The plaintiff has stated that the property is such that it is incapable of division by metes and bounds and that the proper way of effecting a just and fair partition of this property is to direct a sale of the property and divide the net sale-proceeds into two equal half-shares between the plaintiff and the defendant. The defendant who is contesting the suit however, would not accept the stand taken up by the plaintiff that the property is incapable of division. He would have it that the property could be conveniently and without prejudice to the rights of the parties divided into equal half shares. The further case of the defendant is that, in any event, if this Court should take the view that the only way of dividing the property is to direct a sale of the theatre outright, the plaintiff should be directed to sell his half-share to the defendant after determining the value of that half-share. From the above, it will be seen that the main question that arises for decision in the suit is whether the property is capable of division by metes and bounds and whether the defendant has got a right to compel the plaintiff to sell his half-share on a valuation.

With the view to assit the Court in determining whether the property is capable of convenient division, I appointed a Commissioner, and the Commissioner after inspection of the property has submitted a report. I also made a local inspection. of the theatre in the presence of learned Counsel for both sides. I have made a. record of the impressions which I had formed when I inspected the property. It is sufficient to state that the prima facie impression which I had formed and which I have recorded is that the property is not capable of division by metes and bounds.

While the suit of the plaintiff was getting ready for trial, learned Counsel for the plaintiff made an oral application, for reasons which it is unnecessary to consider in detail, that his client has decided to withdraw the suit and that permission may be granted to the plaintiff to withdraw the suit with liberty to institute a fresh suit. Learned Counsel for the defendant opposes this application on the ground that the right of the plaintiff, even though the suit is for partition, is not unqualified and unconditional, and that having regard to the nature of the contentions of the defendant, the plaintiff ought not to be permitted to withdraw the suit,but the Court should further proceed with the suit and consider the relief that could be granted to the defendant, with reference to his plea that the plaintiff’s share should be directed to be sold to the defendant on valuation. In support of his contention, Mr. Govind Swaminathan drew my attention to the decision of a Bench of this Court in Seethai Achi v. Meyyappa Chetti,1 in which this Court had to consider the various restrictions or limitations on the right of a plaintiff to withdraw the suit. In that case, while the suit was pending, a compromise was entered into between some of the parties and a third party, and the third party filed an application to implead him as a party to the suit for the purpose of working out the rights secured to him under the compromise. While that application of the third party was pending, the plaintiff in that suit filed an application to withdraw the suit. The Bench of this Court held that, having regard to the peculiar facts of the case, in particular the rights which the third party claimed as having accrued to him as a result of the compromise, the plaintiff ought not to be permitted to withdraw the suit at that stage. It will be seen that the facts of that case, and the principle of