O R D E R

Petitioners are the defendants and respondent the plaintiff in O.S.218 of 2004. Respondent plaintiff filed I.A.1686 of 2008 under sub rule (3) Rule 1 of Order XXIII of Code of Civil Procedure for permission to withdraw the suit with liberty to file fresh suit on the same cause of action. As per order dated 18.8.2008, learned Munsiff granted the permission on payment of cost of Rs.3,000/-. This petition is filed under Section 115 of Code of Civil Procedure challenging the order.

2. Learned counsel appearing for petitioners was heard. 3. The argument of the learned counsel appearing for petitioners is that though suit was originally one of injunction, plaint was subsequently amended, and a plea on right of easement of necessity was added and subsequently petition for amendment of the plaint incorporating right of easement by grant was filed and its arguments were heard and it is thereafter I.A.1686 of 2008 is filed to withdraw the suit, when it is clear CRP664/08 2 that respondent will not get a relief in the suit and dismissal of the suit cannot be avoided by filing an application to withdraw the suit with liberty to file a fresh suit. Learned counsel argued that a commissio