RASOOL BEEVI Vs. S.HIDAYADULLAH

JUDGEMENT

(1.) The petitioners, as plaintiffs, have filed a suit in O.S.No.592 of 2012 before the Additional District Munsif Court, Tirumangalam, for declaring the suit property as a common road and for other reliefs. Pending the suit, they moved an interlocutory application in I.A.No.6 of 2022 under Order XXIII Rule 1(3) CPC to withdraw the suit with liberty to file a fresh suit, in case of necessity. The trial Court, by order dtd. 23/11/2022, dismissed the application with costs and aggrieved over the same, the petitioners have moved the instant revision petition.

(2.) According to the petitioners, only at the end of the trial, they came to know about the judgment passed in O.S.No.655 of 2017 on the file of the Sub Court, Tirumangalam, instituted by the second respondent herein, wherein the very same suit schedule property was declared as a common road. Therefore, the petitioners sought to withdraw the present suit with liberty to file a fresh suit, in case of necessity.

(3.) Learned Counsel for the petitioners, by relying upon the decision of this Court in K.P.Selvah v. Atlee [2019 (5) LW 110], submitted that the liberty to file fresh suit alone can be rejected by the trial Court and that the Court cannot reject the request of withdrawal.