(1.) The 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.
(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.