An application for withdrawal of a suit with permission to file a fresh suit on the same cause of action under O. 23, R. 1, Civil P. C. must be allowed or refused in toto. The court cannot grant permission to withdraw the suit without liberty to file a fresh suit.

( 1 ) THE petitioner herein file a suit, O. S. No. 982 of 1966 on the file of the District munsifs Court, Salem, for declaration that the suit wall is common both to the plaintiff and the defendant and for consequential reliefs. It appears that the petitioner obtained an interim order of injunction at the first instance but it was later on vacated at the instance of the respondents herein. After the interim injunction was vacated the petitioner filed an application in I. A. No. 919 of 1968 for permission to withdraw the suit with liberty to file a fresh suit under O. 23, R. 1, Civil P. C. The said application was opposed by the respondent on the ground that the petitioner was not entitled to have liberty to file a fresh suit on the same cause of action. The application was considered by the lower court and it felt that the petitioner has not made out a case for the grant of liberty to file a fresh suit on the same cause of action. But at the same time the lower court granted permission to the petitioner to withdraw the suit without liberty to file a fresh suit on the same cause of action and the court also directed the costs of the suit being paid by the plaintiff to the defendants. The order in I. A. No. 919 of 1966 was followed up by the dismissal of the suit on the same day with the following observations: "taken up today Suit withdrawn on petition. " the petitioner questions the correctness of the order of the lower court passed in his application for withdrawal of the suit with liberty to file a fresh suit on the same cause of action.

( 2 ) IT is contended firstly that, the grounds mentioned by the petitioner in support of the application are sufficient for the grant of leave to withdraw the suit with liberty to file a fresh suit on the same cause of action and that the lower court was in error in refusing the leave as prayed for. Secondly it is contended that, even if the petitioner has not made out a case for grant of liberty, the lower court had no jurisdiction to cut up the prayer in his petition and grant permission to withdraw the suit without liberty and proceed to dismiss the suit on the ground that the petitioner (plaintiff)) has withdrawn the suit.

( 3 ) AS regards the first contention I am not inclined to agree with the learned counsel. The court below has gone into the circumstances under which the suit is sought to be withdrawn and has held that the petitioner has not made out a case for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. I am inclined to agree with the reasoning given by the lower court for holding that the petitioner is not entitled to have the liberty to file a fresh suit on the same cause of action. In this case it is for any formal defect that the suit is sought to be withdrawn. The reason given for the withdrawal of the suit is that the interim injunction granted earlier by the court has been withdrawn as a result of which, the respondents are proceeding with the construction on the common wall. The above facts, even if true, cannot entitle the petitioner to have the liberty to file a fresh suit on the same cause of action. I am of the view that there are no sufficient grounds for the petitioner to institute a fresh suit on the same cause of action and the lower court was right in taking the view it did with reference to the petitioners right to have the liberty to file a fresh suit.

( 4 ) AS regards the second contention however I find that there is considerable force. When the petitioner seeks to withdraw the suit with liberty to file a fresh suit on the same cause of action, the lower court cannot direct the withdrawal of the suit without giving liberty to file a fresh suit on the same cause of action. If the court thought that the petitioner is not entitled to the liberty sought for by him, it should have dismissed the application without dismissing the suit on the basis that it has been withdrawn. As pointed out by Wanchoo, C. J. (