By way of this petition, petitioner has challenged the order dated 15.9.2011 (Annexure P-3), passed by the Appellate Court, whereby application moved by the petitioner under Order 23 Rule 1 of the Code of Civil Procedure, 1908 (CPC for short) was dismissed. Learned counsel for the petitioner has submitted that the trial Court had, itself, found that there was technical defect in the suit. Hence, the Appellate Court should have allowed the petitioner to withdraw the suit in question with permission to file a fresh one on the same cause of action. In support of his arguments, learned counsel has placed reliance on the decision of this Court in M/s. Manohar Cold Storage and Ice Factory v. Baldev Singh and others 2010 (3) Civil Court Cases 0481, wherein, it was held as under:--

23. Reverting back to the facts of the present case;

The trial Court has specifically recorded in para 19 of its judgment that "it is not deciding issue Nos. 1 and 2 which are the issues on merits. Issue Nos. 6 to 9 are decided against the plaintiff and against the defendants respectively. Only issue Nos. 3 and 4 have been decided against the plaintiff on the basis of which suit has been dismissed, where