L SHIVAKUMARASWAMY Vs. H LINGAPPA

JUDGEMENT

(1.) clearly the court has committed a faux pas in passing the impugned order under which it permits the petitioner to withdraw the suit while refusing the prayer to renew the suit on the same cause of action. The order in question was made at the behest of the plaintiff who is the petitioner in this case pursuant to an application made under order 23, Rule 1, c.p.c., seeking leave to withdraw the suit with liberty to file a fresh suit on the same cause of action. There were in all five parties to the suit. Plaintiff-1 is the petitioner herein. Plaintiff-2 is respondent-4. Defendant-1 is the father of plaintiffs-1 and 2 and defendants-2 and 3. The suit was for partition of several properties.

(2.) out of the suit properties. One item was claimed to be the self acquisition of the father in which stand he received support from the second respondent who is the other son. The suit was pending for some time. The plaintiff later thought it fit not to antagonise his father who it is said had assured the petitioner a share in the property if he withdrew the suit, had therefore filed an application under order 23, Rule 1 referred to supra. On that application the learned judge passed the impugned order granting permission to withdraw but refusing leave to renew the suit at a later stage.

(3.) the order in question, said to be one passed under order 23, Rule 1 (3) reads: "in the result, for the foregoing reasons, la. Viii is hereby allowed; further it is ordered that the plaintiffs are not permitted to file a fresh suit on the same cause of action. Consequently, the plaintiffs' suit is hereby dismissed, considering the peculiar circumstances of the case, i direct each party to bear his or their own costs." rules 1(3) and (5) of order 23 of the C.P.C. being the relevant Provisions to note read: