A withdrawal from a suit under Order 23 Rule 1, Civil P.C. does not preclude the party from seeking a separate remedy, and the withdrawal order does not extinguish the party's rights.

Sarwate, J—The non-applicant Mt. Mahmudabi claims to be entitled to 1/8th share in certain properties which are alleged to have belonged to her father. She is suing the other heirs of her father, i.e., her brothers or their representatives defendants 1 to 10, for partition and separate possession of her share. To the suit, amongst others, the applicant Abdul Majid was also joined as defendant 11 on the allegation that he was in possession of lands nearly 300 acres in area in villages Dahifal and Pendbara which formed part of the estate of her father. On 2nd April 1946 the plaintiff applied to the Court that she wanted to abandon her claim as regards the property in possession of Abdul Majid. In the application it was stated that the plaintiff is the sister of defendant 11's mother and she did not want to strain the relations between them and, therefore, she did not want to claim a share in the property in possession of defendant 11. The application was filed by the plaintiff's husband Bahadarkhan who had taken a special power of attorney from the plaintiff on 27th October 1946 which was produced along with the application. The Judge passed the following order on the application on 2nd April 1946: Plaintiff's special agent -- her husband -- Bahadarkhan files an application to discharge defendant 11. He files special power for plaintiff. I allow the application and discharge defendant 11. Costs of defendant 11 on plaintiff.

2. On 25th September 1946, an application bearing date 22nd September 1946 and bearing the thumb-mark of the plaintiff impressed by the hand of Bahadarkhan was received in Court by registered post in which it was stated that the plaintiff had made the application for discharge of defendant 11 because he had come to her house and had made a promise that he would give to her same area of land in another village as she was entitled to for her share out of the lands in this suit which were in his possession and induced her to have faith in him and give him a discharge from the suit; that defendant 11 is her sister's son and so she trusted him and made the application for his discharge; and that subsequently, when the plaintiff demanded the land promised, from defendant 11, he offered to give only 1 1/2 acres land in village Poghat and refused to give her anything more, She alleged that in this way defendant 11 had practiced fraud on her and induced her to make the application for his discharge from the suit. She prayed that the order of discharge should be set aside and the suit proceeded against defendant 11 as well.

3. The Judge caused notice of this application to be sent to the applicant. The applicant appeared and opposed it. On 6th February 1947, the successor of the Judge, being of opinion that an application received by registered post could not be taken to be properly presented, directed that the plaintiff should appear in person, verify the application and then present it. The plaintiff accordingly appeared on 22nd September 1946 and recorded the verification. The application was then treated as presented by her on that date. Inquiry was then made into the application and on 22nd April 1947 an order was passed setting aside the order, dated 2nd April 1946, and allowing the suit to continue against the applicant. This application in revision is filed against that order.

4. The contention on behalf of the applicant is that the plaintiff's application, dated 2nd April 1946, was under Order 23, Rule 1, Civil P.C., and as she withdrew from the suit unconditionally and without permission of the Court as is-referred to in Sub-rule (1), she would be precluded from instituting any fresh suit in respect of that part of the claim under Sub-rule (2). It is argued that allowing her to continue the suit is in effect to permit the institution of a fresh suit after she had abandoned one on 2nd April 1946, It is also contended that the application for setting aside the order, dated 2nd April 19461 amounts in law to