RAME GOWDA Vs. S V KRISHNAIAH

JUDGEMENT

(1.) This Revision petition is by the defendants in Original Suit No. 7 of 1974 on the file of the Third Additional Civil Judge, Mysore, and is directed against the order dated 25-8-1976 passed by the said Civil Judge permitting the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action.

(2.) The learned Counsel for the revision- petitioners strenuously urged that the learned Civil Judge has committed breach of Order XXIII Rule 1(3) of the Code of Civil Procedure inasmuch as he has given permission to the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action without satisfying himself that the conditions mentioned therein are satisfied on the facts of the present case.

(3.) The plaintiff instituted the suit for specific performance. Several contentions were taken by the defendants. During the pendency of the suit, the plaintiff filed an application supported by an affidavit for leave to withdraw the suit with permission to file a fresh suit on the same cause of action. This is what is averred in his affidavit: