JUDGMENT

The following substantial questions of law are framed in this second appeal arising from the judgment and decree of the Additional District Court, Thodupuzha in A.S.No.257 of 2004 confirming judgment and decree of the Munsiff's Court, Devikulam in O.S.No.241 of 1999 and dismissal of the counter claim filed by the 2nd appellant/2nd defendant:

i. Is it correct for the courts below to have allowed a petition purportedly filed under Order XXIII, Rule 1(3) of the Code of Civil Procedure (for short, “the Code”) and that too, on the affidavit filed by the counsel for the plaintiffs without a proper prayer as mandated under the above provision and without affording an opportunity to the defendants to file objections for the same?

ii. Is not the suit from which the above second appeal arose barred under Order XXIII, Rule 1(4) of the Code?

iii. Can a court grant permission for withdrawal with liberty to file a fresh suit under Order XXIII, Rule 1(3) of the Code without stating the reasons for such grant or without stating as to which condition under Order XXIII, Rule 1(3) is satisfied?

RSA No.606/2009 2 iv. Is not an order granting leave under Order XXIII, Rule 1(3) of the Code without a