ORDER :

This petition has been filed to set aside the order in I.A.No.18 of 2015 in O.S.No.18 of 2015 in A.S.No.7 of 2009 dated 31.08.2015 on the file of the Sub Judge, Sivagangai.

2. The petitioner herein is the first respondent, the first respondent herein is the petitioner and the second respondent herein is the second respondent in the original petition. The first respondent herein has filed a suit in O.S.No.11 of 2007 for declaration and for permanent injunction. The suit was dismissed. Against which, an appeal in A.S.No.7 of 2009 was filed before the learned Sub Judge, Sivagangai. Pending appeal, the first respondent herein has filed a petition in I.A.No.18 of 2015 seeking permission to withdraw the original suit with liberty to file a fresh suit on the same cause of action and the same was allowed. Against that order, the revision petitioner has approached this Court.

3. Brief substance of the petition in I.A.No.18 of 2015 reads as follows:

The petitioner is the first appellant in the appeal. The original suit was filed for declaration and for injunction. The petitioner filed the original suit along with the other legal heirs of his father and with the legal heirs of his father's brothers Raman and Chinnaya. The trial Court has decided that the legal heirs of the deceased Raman were not entitled to the property. The legal heirs of the father of the plaintiff alone has to file a fresh suit. If such a permission is not granted, great prejudice will be caused to the petitioner.

4. Brief substance of the counter in I.A.No.18 of 2015 reads as follows:

The reasons stated in the petition are not acceptable. Certain benefits are given to the first respondent/first defendant in the judgment rendered by the trial Court. There is no defect sufficient enough to withdraw the appeal and to permit the petitioner to file a fresh suit.

5. After hearing both sides, the trial Court allowed the petition. Against which, the revision petitioner has preferred this Civil Revision Petition.

6. On the side of the revision petitioner, it is stated that the appeal and the original suit were not the first round of litigation. Already the first respondent has instituted a suit through his representative. The ingredients under Order 23 Rule 1 of CPC has to be satisfied before allowing the application. The withdrawal of the suit at the first appellate stage cannot be allowed to take away the privileges and benefits confer upon the defendants in the judgment of the trial Court. There is no formal defect in the original suit filed by the first respondent that cannot be rectified. Compensatory cost cannot justify a prayer for permission to file a fresh suit.

7. On the side of the revision petitioner, it is stated that the revision petitioner refused to receive the cost imposed by the first appellate Court. The revision petitioner filed this Civil Revision Petition and he obtained a stay order in M.P.(MD)No.1 of 2020 on 17.11.2015 but the respondent filed a fresh suit in O.S.No.191 of 2015. Filing of O.S.No.191 of 2015, when the stay was in force is not valid. The learned District Munsif, Sivagangai is pressuring the suit for trial. The suit is pending for recording of evidence and is posted to 17.08.2021. Without considering the stay order, the trial Court is proceeding the case.

8. On the side of the respondents, it is stated that the first appellate Court gave permission to withdraw the suit and to file a fresh suit. A fresh suit was filed on 28.10.2015 and the fresh suit was numbered as O.S.No.191 of 2015. There is no stay order in O.S.No.191 of 2015.

9. On the side of the revision petitioner, it is stated that the original suit was filed by Mookkan and 11 others in the year 2007 questioning the power deed executed in the year 2001. The property never belong to the plaintiffs or the father of the first plaintiff. The plaintiffs executed a power deed in favour of the second defendant. On 10.08.2021, a sale deed was registered, on the basis of the power deed. The