MARUDACHALA NADAR Vs. CHINNA MUTHU NADAR

JUDGEMENT

(1.) THE petitioner as plaintiff applied Under Order 23, Rule 1, Sub-rule 2, Criminal P. C, for permission to withdraw from his suit with liberty to institute a fresh suit in respect of the same subject-matter. THE learned District Munsif, while refusing to grant such liberty, has thought that it was open to him to accept the former portion of the application and to allow the withdrawal of the suit. I think there is no doubt that an application of this kind must be treated as an indivisible whole and if a party is not allowed liberty to institute a fresh suit his pending suit should not be dismissed, but the application should be refused altogether and the suit should be retained upon the file. This is the view taken in Bhagwat Pershad v. Lachmi Pershad [1911] 10 I.C 346, and Mahant Biharidasji V/s. Parshotamdas [1908] 32 Bom. 345, and appears to me to be clearly reasonable. I must therefore allow the petition, set aside the District Munsif's order and direct the District Munsif to rehear and dispose of the application. As the respondent has not contested the petition before me each party will bear his own costs.