The respondent in A.S.No.142 of 2007, on the file of the learned Additional Sub-Court, Vridhachalam, is the Civil Revision Petitioner before this Court. Challenging the order passed in I.A.No.16 of 2010 in A.S.No.142 of 2007, on the file of the learned Additional Sub-Court, Vridhachalam, dated 09.02.2010.

2. The respondent/appellant has filed a suit in O.S.No.412 of 2000 against this petitioner/defendant for a declaration declaring that the plaintiff's title over the suit property and for consequential relief of permanent injunction. The suit was hardly contested by the defendants and by way of filing written statement, and the learned Principal District Munsif, Vridhachalam was dismissed the suit on 16.07.2007.

3. Challenging the said judgment and decree in O.S.No.412 of 2000 dated 16.07.2007, the respondent/appellant who is the plaintiff has filed an appeal before the learned Additional Subordinate Judge, Vridhachalam in A.S.No.142 of 2007. While pendency of the above appeal, the respondent/appellant who is the plaintiff has filed an application in I.A.No.16 of 2010 in O.S.No.412 of 2000 filed under Order 23 Rule 1(3)(b) CPC, permitting the appellant/plaintiff to withdraw the original suit and permit the plaintiff to file another suit on the same cause of action. In the petition filed in I.A.No.16 of 2010, the plaintiff stating that the appellant/plaintiff may be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action.

4. It is the case of the petitioner is that originally the petition filed against the respondents/defendants for declaration declaring the title of the suit schedule of property in favour of the plaintiff and also for permanent injunction. At the time of filing the suit, the plaintiff is not impleaded as legal heirs of his grandfather and therefore, the defendants while filing the written statement has pointed out that the suit is not maintainable due to non-joinder of necessary parties.

5. After the judgment in O.S.No.412 of 2000, the appellant/plaintiff has impleaded the legal heir of his grandfather namely the respondents 2 to 8 as respondents in the Appeal. But, the respondents 2 to 8, who were impleaded as respondents in the appeal were not appeared in the lower Court in O.S.No.412 of 2000.

6. After filing the appeal in A.S.No.142 of 2007, it is alleged by the appellant/plaintiff that his counsel has advised after gone through the plaint, written statement and judgment that in the plaint, there was no proper pleadings in respect of the share of the plaintiff and the other particulars were not properly explained in the plaint and therefore, the learned counsel in the appeal stage advised the plaintiff that the preparation of the plaint in O.S.No.412 of 2000 itself is not proper and therefore, he advised the plaintiff to file an application under Order 23 Rule 1(3)(b) CPC for withdrawal of the suit with liberty to file a fresh suit with the same cause of action.

7. The plaintiff also states in the affidavit that one of the document in respect of purchasing the property by the defendant, the boundary is not properly given, since the plaintiff and his ancestors were enjoying the suit schedule of property for more than 50 years. But, without stating the above possession of 50 years, the plaint was preferred. Therefore, the formal defect mentioned supra could not be corrected in the plaint. Therefore, unless the plaintiff is permitted to withdraw the suit and file a separate suit on the same cause of action, he would put irreparable loss and the plaintiff is not permitted to withdraw the suit in the appeal stage, he stated that he would lose the case also. Therefore, the plaintiff could not be compensated in all.

8. For the above petition in I.A.No.16 of 2010, the respondent/defendant has filed a counter affidavit by stating that the allegations set out in the affidavit is not maintainable. The non raising of the ground of 50 years possession and the ancestral property is no