ORDER

This Civil Revision Petition has been filed to set aside the fair and decreetal order, dated 30.03.2021 in I.A.No.1 of 2000 in A.S.No.26 of 2018 passed by the learned Principal District Judge, Sivagangai.

2.The parties are referred to as per the rank mentioned before the Court below.

3.The petitioner herein has filed a petition in I.A.No.1 of 2000 in A.S.No.26 of 201, under Order 23 Rule 1 of Civil Procedure Code, to withdraw the suit and liberty to file fresh suit. The said petition was dismissed on 30.03.2021. Aggrieved over the same, the petitioner is before this Court.

4.Heard on either side and perused the material documents available on record.

5.The Civil Revision Petition is filed on the ground that the order of dismissal of application to withdraw the suit with liberty to file a fresh suit filed by the petitioner/appellant by the learned Executing Court and reasons adduced therefore are unsustainable and devoid of merits. The Court below has failed to see that when the extent of the property has been mistakenly mentioned as 49 ½ cents in the plaint but, admittedly the original extent is 67 cents and in order to correct the technical error, the petitioner has preferred the present Civil Revision Petition for withdrawl of the suit with liberty and dismissal of the same by the Court below is unwarranted.

6.The petitioner has filed a petition in I.A.No.1 of 2000 in A.S.No.26 of 2018 on the file of the Principal District Court, Sivagangai, under Order 23 Rule 1 of Civil Procedure Code, to withdraw the suit with liberty to file fresh suit. The said petition was dismissed on the ground that the petition was filed after six years from the date of filing of the suit.

7.The suit was filed for partition which was dismissed by the trial Court on 28.03.2018. In the Judgment of the trial Court, the Court has observed that on suppression of material facts by the plaintiff and wrong pleading of defendants the due share of the parties cannot be find out and framing of suit is also not proper.

8.So, it is necessary to give permission to the petitioner to withdraw the suit with liberty to file fresh suit for partition. So, it can be proved only by proper pleadings and evidence.

9.But, the petition in I.A.No.2 of 2020 in A.S.No.26 of 2018 was filed after lapse of two years from the date of filing of an appeal. The petitioner ought to have filed this petition at the time of filing appeal. So, Costs to be imposed to the petitioner. Hence, this Court is inclined to allow the Civil Revision Petition with Costs.

10.Finally, this Civil Revision Petition is allowed on condition that the petitioner is directed to pay a sum of Rs.5,000/-(Rupees Five Thousand Only) to the respondents, on or before 18.04.2022. If, the petitioner is failed to comply with the order, the order passed by this Court is cancelled automatically. Consequently, connected miscellaneous petition is closed.

11.Post the matter for reporting compliance on 19.04.2022.

Index :Yes/No 31.03.2022 Internet:Yes/No ksa Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.

To The Principal District Court, Sivagangai.

S.ANANTHI, J.

ksa Order made in C.R.P.(MD)No.1152 of 2021

31.03.2022