S.N. Andley, J.
(1) This review application has been filled for the review if my order dt. 21.3.72 by which the revision petition filed by the respondent was allowed and ihe entire suit filed by the applicant with regard to all the prayers in the suit Was dismissed as withdrawn.
(2) The first objection raised on behalf of non-applicant is that application has been filed beyond prescriced period of 30 days. [After giving details of dates, the judgment proceeds] It seems to me that there was not only one day's delay in the filing of the review application but the applicant also was not very vigilant in complying with the requisitions of the office within the time allowed to him. If the matter had rested there, I would have been reluctant to condone the delay because there does not appear to be sufficient justification for the delay in refiling the application within the time allowed by the office and if the dates of refiling are to be taken into consideration the review application will undoubtedly be hopelessly time-barred.
(3) However, on hearing the matter on merits, I feel that the order made on March 21, 1972 with regard to the disposal of the suit was not an order in accordance with law and, thereforee, inasmuch as it is going to be binding on the subordinate Courts and relates to the interpretation of sub-rule (2) rule 1 of Order Xxiii of the Code of Civil Procedure, I will go into the merits of the matter in exercise of the inherent powers of this Court because there are likely to be large number of applications of the same nature as the application that was filed in the trial court in this matter. What had happened was that the evidence of the parties had been concluded in the trial Court and the suit was only to be argued on the merits when the applicant-plaintiff filed the application under sub-rule (2) of rule 1 of Order Xxiii of the Code of Civil Procedure to withdraw the suit filed by him with liberty to file a fresh suit. By his order dated July 29, 1968 the Additional District Judge who was hearing the suit permitted the applicant to withdrawn it in respect of part of the relief but found that there was no good ground for permission to institute a fresh suit and he, thereforee, dismissed that part of the suit as withdrawn.
(4) In revision it was held by me that the grounds which were given by the applicant for withdrawing the suit with liberty to file a fresh suit were not grounds as are contemplated by sub rule (2) of rule 1 of Order Xxiii of the Code of Civil Procedure and I further held that the Additional District Judge was cot Justified in permitting the withdrawal of the suit with regard to the part of the relief with liberty to file a fresh suit on the same cause of action. Then I said, ' In the result, the order of the Additional District Judge is set aside, the revision is accepted and the entire suit with regard to all the prayers shall be dismissed as withdrawn...'
(5) I think there is substance in the argument of the applicant that in a case where an application is made under sub rule (2) of rule 1 of Order Xxiii of the Code for withdrawing it with liberty to file a fresh suit on the lame cause of action and the Court does not grant the requisite liberty, the order to be made is to dismiss the application and not to dismiss the suit. It is not necessary to dilate too much on the subject because it seems so well covered by the authorities. The first case to which reference might be made is reported in Naru v. Mr. Noji and others where the principle has been well expressed in the following words :
'IFa plaintiff merely desires to withdraw a suit all he has to do is to make an application under sub r. (1) of R. I. of 0.23. But where he applies under sub-rule (2) what he wants is that he should be permitted to withdraw the suit with permission to institute a fresh suit. thereforee, when an application is made under sub-rule (2), it is not open to the court to . treat it as if it is an application under sub-r. (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit. The prayer under sub-rule (2) must be treated as one whole and the court may either reject the entire. prayer, or allow the entire prayer i.e.. permit the withdrawal of the suit with liberty to bring a fresh suit The reason is that if the court grants him the permission to withdraw but refuses the permission to institute a fresh suit, the result would be the plaintiff would be deprived of carrying on with the suit as best as he can and would also not be permitted to file a fresh suit on the same cause of action. It was not the intention of the legislature that the plaintiff should be put to this loss by breaking up the prayer for withdrawal with permission to file a fresh suit about the same subject-matter into two parts.'
To the same effect is the case reported in Thodi Konda Veeraswami V. Thulium fade Lakshmudu & others A.I.R. 1991 Mad 715 where it is stated.
'WHEREa plaintiff files a petition to withdraw the suit with permission to file a fresh suit regarding the same subject matter, under 0 23 R, (2) the Court has got the right to dismiss the petition telling him that he might withdraw the suit if he wants but that it will not i e him permission to file a fresh suit regarding the same subject-matter. The court cannot divide the petition into two .and accept the withdrawal and refuse the liberty in the same order.'
It, thereforee, appears to be clear that in a case where the Court is not granting liberty to file a fresh suit, all that it can do is to dismiss the application praying for withdrawal of the suit with liberty to file a fresh suit and not to dismiss the suit The suit must proceed to trial from the stage at which the application was made.
(6) Mr. Anoop Singh, learned counsel for the non-applicant, has relied upon a judgment of Dua J., as his lordship then was, repored in Plara Ram and another V. Ganesh Dass and others where in circumstances similar to the matter before me, the suit and not the application was ordered to be dismissed. After deciding that the applicant was not entitild to the liberty to file the fresh suit, the learned Judge observed.
'THEquestion, however, arises what order should now be passed. Should the case be sent back for the learned Subordinate Judge to consider the circumstances of the case and then pass final order or should the order of withdrawal stand, but the permission to institute a fresh suit quashed. After considering the circumstances of the case and the fact that the plaintiffs have not cared to appear in this Court, in my opinion, the withdrawal of the suit should stand but the permission granted by the Court below to institute a fresh suit quashed, which I hereby order.'
In my view, the order that was made by Dua J. was induced more by the fact that the plaintiff had not, appeared in the High Court than upon an interpretation of sub-rule (2) of rule 1 of order Xxiii of the Code and I find it difficult to accept if as an authority for such interpretation.
(7) The order that has to be passed by a Court on an application for withdrawal of the suit with liberty to file a fresh suit on the same cause of action when the Court is not granting such liberty is to dismiss the application and to try the suit from that stage onwards and not to dismiss the suit itself as withdrawn. In these circumstances, I review my order dated March 21,1972 in so far as the last paragraph is concerned and direct that in its place the following paragraph should stand substituted.
'INthe result, the order of the District Judge is set aside ; the revision is accepted and the application of the respondent for withdrawal of the suit with liberty to file a fresh suit stands dismissed. The case will be sent bach to the Additional District Judge for trial from the , stage at which the 'application for withdrawal was made by the respondent. There will be no order as to costs.'