1. The plaintiffs/respondents filed the present suit for declaration on 22nd Dec. 1978. Their suit remained pending for about four years when it was ultimately dismissed on 29th Nov., 1982. An appeal against the said judgment and decree of the trial court was filed on 14th Dec., 1982. On 31st Jan., 1983, the plaintiffs moved an application for seeking permission to lead additional evidence. Reply to the application was filed on 19th Sept., 1983. Without getting any orders on the application, the plaintiffs moved an application dt. 22nd Oct.,1984, for permission to file a fresh suit on the same cause of action. This application was contested on behalf of the defendants. However, the learned District Judge, vide impugned order dt. 23rd Oct., 1984, allowed the application for withdrawal of the suit on payment of Rs.200/- as additional costs.

2. Learned counsel for the defendants-petitioner submitted that in view of the finding under Issue No.6, the suit was liable to be dismissed even if Issue No.2 was not there. In any case, argued the learned counsel, the suit could not be allowed to be withdrawn at the appellate stage when there was already a decree of the trial court dismi