@JUDGMENTTAG-ORDER
N. Ananda, J.@mdashThe learned trial judge has permitted the plaintiff to withdraw the suit filed for partition in terms of the impugned order. Therefore, one of the defendants is before this court. The suit is filed for partition and separate possession of plaintiffs half share in the suit schedule properties which are as many as eight in numbers. Item No. 1 is classified as ''A'' Schedule property and remaining properties are classified as ''B'' schedule properties. The plaintiff tendered evidence and marked certain documents. During evidence, plaintiff produced the decrees made in O.S. No. 9/1985 and O.S. No. 553/1997 wherein, there is decree for partition of plaint ''B'' schedule properties in favour of father of the plaintiff.
2. It was also brought to the notice of plaintiff that his father had executed an agreement of sale pursuant to 6th defendant had filed O.S. No. 43/2004 for specific performance of the agreement and the suit was decreed in respect of ''A'' schedule property.
After the conclusion of plaintiff''s evidence, an application was filed under Order 23 Rule 1 CPC, interalia contending that plaintiff wants to give up the plaint in respect of ''B'' schedule properties in view of decree made in O.S. No. 9/1985 and O.S. No. 553/1997. The plaintiff also contended that defendants 4 to 6 have colluded and got a compromise decree in O.S. No. 43/2004, therefore, sought for permission for withdrawal of suit with liberty to institute fresh suit in respect of ''A'' schedule property. The learned trial judge accepting the contention of plaintiff passed the following order:
The I.A. No. 21 one filed by the plaintiff under Order 23 Rule 1(3) of CPC, is hereby allowed and the plaintiff is permitted to withdraw the above suit with a liberty to institute a fresh suit in respect of the suit ''A'' schedule property only before the competent jurisdictional court. In view of the peculiar circumstances, the parties are directed to bear their own cost.
3. In order to grant permission to withdraw a suit with liberty to institute a fresh suit on the same subject matter under Order 23 Rule 1(3), the court must be satisfied that a suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, on such terms as it thinks fit.
4. In the case on hand, the learned trial judge has not permitted plaintiff to abandon the suit in respect of ''B'' schedule properties. The learned trial judge has permitted plaintiff to withdraw the suit in respect of ''A'' schedule property with permission to institute a fresh suit in respect of ''A'' schedule property by entirely relying on apprehension expressed by plaintiff that he is not likely to succeed in the suit.
If the plaintiff finds that the evidence adduced by him or evidence adduced by other parties would not suit him, that cannot be a ground for him to seek permission to withdraw the suit with liberty to institute fresh suit on the same subject matter or part thereof.
In the case on hand, the plaintiff had filed a suit for partition which is pending from the year 2005. The plaintiff has led the evidence and the case is set down for defendants evidence. At this stage, plaintiff wants to give up his right in respect of ''B'' schedule properties with liberty to institute a fresh suit in respect of ''A'' schedule property without satisfying the court that there are sufficient grounds for allowing plaintiff to institute a fresh suit as required under Order 23 Rule 3(b) CPC.
5. The learned trial judge without taking into consideration the provisions of Order 23 Rule 3(b) CPC, and circumstances under which the request was made has accepted the application. If the logic adopted by the learned trial judge is accepted in every case, whenever the plaintiff after trial finds that he is not likely to succeed, he may take recourse to Order 23 Rule 3 CPC, to keep the litigation pending alive for all times to come. Therefore, I pass the following:
ORDER
The petition is accepted. The impugned order is quashed
