ORDER :

This revision is filed challenging the order dated 27.10.2016 in I.A.No.262 of 2016 in O.S.No.1697 of 2012 passed by the Principal Junior Civil Judge, Warangal whereunder an application filed seeking permission to withdraw the suit with liberty to institute a fresh suit was dismissed.

2. The petitioner is the plaintiff in O.S.No.1697 of 2012, which is filed seeking relief of permanent injunction in respect of agricultural land described in the plaint schedule. An application in I.A.No.262 of 2016 was filed by the petitioner/plaintiff under Order XXIII Rule 1(3)(b) of the Code of Civil Procedure, 1908 seeking permission of the Court to withdraw the suit with liberty to institute a fresh suit in respect of the subject matter of the suit.

3. In the affidavit filed in support of I.A.No.262 of 2016, the petitioner stated that she is the absolute owner and possessor of the plaint schedule property. Her husband passed away and she is one of the legal heirs along with her children. On a legal advice, she filed injunction simplicitor suit restraining the respondents from interfering with the plaint schedule property. The respondent/defendant No.1 filed a written statement in the suit alleging that they are in possession of Ac.8.09 guntas and the remaining Ac.0.13 guntas of the plaint schedule property is in possession of one Lakshmi Narayana and M. Rupa. It is alleged by the respondents that the husband of the petitioner/plaintiff has received sale consideration and executed simple sale deeds in favour of the defendants. In view of the defence of the respondents, the petitioner intended to file a comprehensive suit against the respondents/defendants as the simple suit for perpetual injunction is not maintainable and the same constitutes sufficient ground to permit the petitioner/plaintiff to institute fresh suit.

4. The respondents/defendants have not filed counter to the aforesaid application.

5. Under the impugned order, the Court below dismissed the application by giving a reason that the petitioner/plaintiff was contesting the suit since 2012 onwards but the present application is filed in 2016 (wrongly typed as 2013), after completion of her evidence including cross-examination and moreover, at the stage of judgment. The Court below observed that the petitioner/plaintiff is not diligent in prosecuting her case and only with a view to defeat the interest of the contesting respondents, the present application is filed. The application cannot be entertained at a belated stage by permitting the petitioner/plaintiff to create a fresh round of litigation. As the evidence of the defendants is not yet completed, the relief cannot be considered and the petitioner has got every right to contest the suit.

6. Mr. R.A. Achuthanand, learned counsel for the petitioner, submitted that the petitioner intends to withdraw the suit and file a comprehensive suit for declaration. The Court below ought to have granted permission to withdraw the suit, if necessary by imposing costs. The matter is posted for cross-examination of defendants and not for judgment, as observed by the Court below. The withdrawal application can be filed at any stage and even at the stage of appeal. The ground of filing comprehensive suit is a sufficient ground within the meaning of Order XXIII Rule 1 (3) (b) CPC. The provision gives unqualified right to the plaintiff to withdraw the suit in the circumstances mentioned therein. The Court below ought to have allowed the application, as the petitioner/plaintiff is seeking larger relief against the respondents/defendants. The application is no filed at belated stage, as pointed out by the Court below. The observation of the Court below that it will lead to fresh round of litigation is not a sound consideration applying the principles under Order XXIII Rule 1 CPC. Withdrawal of suit is based on public policy as the party can take leave to withdraw the suit or without taking leave of the Court can abandon the suit and in that case