R THYAGARAJAN Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) THE defendant in O.S.No.5614 of 1987 has filed this civil revision petition against the order dated 16.10.1995 in I.A.No.11190 of 95. THE said LA. filed by the respondent/plaintiff sought permission to withdraw the suit with liberty to file a fresh suit. THE said prayer has been granted by the impugned order on condition the plaintiff pays a sum of Rs.200 on or before 25.10.1995. Aggrieved by the said order, the defendant has preferred this civil revision petition.

(2.) THE material allegation in the affidavit in support of the LA. is as follows:- 'since the plaint needs lot of amendment by incorporating a new Schedule regarding the encroached portion of the defendant and also the amendment of the Schedule to the plaint by mentioning the backyard portion alone, the plaint has to be amended suitably. To Avoid more corrections and also amendment, I am advised to file a new suit for the same cause of action.1

(3.) IN such a situation, as rightly pointed out by the learned Counsel for the petitioner, there is no case at all for invoking Order 23, Rule 1(3) of the Code of Civil Procedure. The said rule says: