The court's discretion in granting permission to withdraw a suit with liberty to file a fresh suit on the same cause of action under Order 23 Rule 1(3) C.P.C. is not arbitrary and can only be interfered with if it is vitiated by perversity of approach.

1. The above revision petition has been filed under Section 115 of the Code of Civil Procedure against the order of the learned Subordinate Judge, Devakottai, dated 6.9.1995 in I.A. No. 287 of 1995 in O.S. No. 188 of 1993, whereunder the application filed by the first respondent-plaintiff under Order 23, Rule 1 C.P.C., seeking permission to withdraw the suit with liberty to file a suit on the same cause of action, came to be allowed as prayed for. The second defendant in O.S. No. 188 of 1993 who was the second respondent in the court below in I.A. No. 287 of 1985 is the petitioner in the revision petition.

2. The first respondent-plaintiff filed the suit in question for partition, to pass preliminary and final decrees directing the suit properties to be divided into five equal shares and to allot one such share to the plaintiff and also for calling upon defendants 1 and 2 jointly and severally to render true and proper accounts of the management of the estate of the deceased Unnamalai Achi and 1/5th share of the amount to be ascertained after rendition of sceunts to be directed to be paid to the plaintiff and for making charge over the share of defendants 1 and 2 and ‘A’ and ‘D’ schedules properties till payment of the same is made by defendants 1 and 2.

3. The sum and substance of the claim for partition was that late Unnamalai Achi was the Plaintiffs eternal grandmother and the wife of AL. V. ST. Veerappa Chettiar of Devakottai and the plaintiff is the son of Chinna Valliammai Achi, the pre-deceased daughter of the said Unnamalai Achi. Defendants 1 and 2 are said to be the (sic) sons of the said Unnamalai Achi and defendants 3 and 4 are daughters of the said Unnamalai Achi. The claim for 1/5th share was made on the ground that Unnamalai Achi died intestate on 14.9.1993.

4. Defendants 1 and 2 filed a written statement denying and disputing the claim of the plaintiff on the ground that he had no cause of action at all, that the deceased Unnamalai Achi has not died intestate and has left documents relating to the succession and devolution of her properties and that, the suit claim was, therefore, not maintainable. The third defendant has also filed a written statement by denying the claims made in the plaint and sought for allotment of her share by passing a decree therefor by paying the necessary court-fee. A Commissioner was also said to have been appointed to take inventory of the articles and in the course of the same, it appears, some documents including an unregistered Will dated 29.8.1983 said to have been executed by Unnamalai Achi during her life time was also unearthed.

5. In the light of the above, the plaintiff has filed I.A. No. 287 of 1995 under Order 23 Rule 1 C.P.C. seeking permission to withdraw the suit in question, with liberty to file a fresh suit on the same cause of action. The said, application was opposed by defendants 1 and 2 by filing a detailed counter affidavit, and it was contended therein that whatever may be the rights open to the plaintiff to withdraw his suit, the question of granting liberty to file a suit on the cause of action does not arise and such liberty cannot be granted in this case, since according to defendants 1 and 2, the suit in question having been filed on the plea of intestate succession, the entire suit has to fail in view of the testamentary disposition said to have been made by the deceased Unnamalai Achi and therefore, the cause of action for the fresh suit, which is sought to be filed would be entirely a different one varying from the present suit. Consequently, the claim for withdrawal of the suit with liberty to file a fresh suit on the same cause of action, cannot be acceded to.

6. The learned trial Judge has chosen to allow the application as prayed for by granting permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The learned trial Judge in coming to such a conclusion was persuaded by the fact that the reason for cl