KRUPA BHOI Vs. KESHAN MAJHI AND ORS.

JUDGEMENT

(1.) Heard learned counsel for the parties. This matter arises out of an order dated 17.3.2007 passed by the learned Civil Judge (Junior Division), Bolangir in T.S. No. 27 of 2003 in rejecting an application under Order 23, Rule 1(3)(b) of the Code of Civil Procedure filed at the instance of the plaintiff whereby the plaintiff sought for withdrawal of the suit with liberty to file a fresh suit on the same subject. The defendants filed their objection indicating therein that in the event of withdrawal of the suit, they are likely to be prejudiced and the intention of the plaintiffs to drag the litigation in order to harass the defendants.

(2.) Considering the submissions of the learned counsel appearing for the parties, the trial court by order dated 17.3.2007 allowed the application for withdrawal of the suit debarring the plaintiff for filing any fresh suit on the same cause of action on the ground that if the plaintiff will be allowed to withdraw the suit with liberty to file fresh suit, the defendants will be highly prejudiced. Therefore, party allowing the application the trial Court only permitted the withdrawal of the suit.

(3.) In assailing the aforesaid order, learned counsel appearing for the plaintiff-petitioner submits that since the application for withdrawal of the suit with liberty to file a fresh suit was filed under the provision of Order 23, Rule 1(3)(b) of the Code of Civil Procedure, it was incumbent upon the trial court to either allow the application as a whole or refused the same. The trial court allowing the application in part is illegal and by the impugned order, the plaintiff has lost his vital right in the suit as the suit being permitted to be withdrawn without leave deprives his right of filling of a fresh suit.