K.N. Wanchoo, C.J.
1. This is a revision under Section 115 of the Code of Civil Procedure by Naru and arises in the following circumstances :
Naru filed a suit against his adoptive mother and three sets of defendants. So far as the first two sets of defendants were concerned, he prayed for possession of certain properties which had been alienated by his adoptive mother. So far as the third set of defendants Nos. 6, 7 and 8 was concerned, he prayed for possession of house said to have been sold to these three defendants. The case of these three defendants, however, was that the house in question belonged to them and had been mortgaged by their ancestors to the ancestors of the plaintiff and all that these defendants had done was to redeem the house.
2. The suit went on against the three sets of defendants and when it was about to come to an end, an application was made on 21-5-1954 by the plaintiff for permission to withdraw the suit against defendants Nos. 6, 7 and 8 with liberty to file a separate suit. It was said on his behalf that he had made a mistake in treating this property, which had been mortgaged in the family as the property of the family and there was, therefore, complication in the suit and he had been unable to look after it properly and there were other formal defects. He, therefore, prayed that he might be permitted to withdraw the suit against these three defendants with liberty to bring a fresh suit.
3. The learned Munsif permitted the withdrawal of the suit, but refused to give permission to bring a fresh suit. Aggrieved by this order, the present revision was filed by the plaintiff-applicant and his case is that the Munsif should either have dismissed the application in toto and carried on with the suit as it was or should have allowed withdrawal with liberty to bring a fresh suit and that it was not within the power of the Munsif to break up his application into two parts and allow the part relating to withdrawal and refuse the part relating to the prayer for liberty to bring a fresh suit.
4. I am of opinion that there is force in this contention of the applicant. Order XXIII, Rule 1 deals with withdrawal of suits. Sub-rule (1) of that rule gives the plaintiff an option to withdraw a suit or abandon part of a claim. Under this sub-rule, the plaintiff may withdraw any part of the claim and there are no conditions attached to such withdrawal. Then comes Sub-rule (2) which provides that if certain conditions are satisfied, the Court may grant the plaintiff permission to withdraw the suit or abandon part of the claim with liberty to bring a fresh suit in respect of the subject-matter so withdrawn.
It seems to me that where the plaintiff applies under Order XXIII, Rule 1 (2) what he wants is that he should be permitted to withdraw the suit with permission to institute a fresh suit. If a plaintiff merely desired to withdraw a suit all he had to do is to make an application under Sub-rule (1). Therefore, 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-rule (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit.
I am of opinion that the prayer under Sub-rule (2) must be treated as one whole and the Court may either reject the entire prayer, namely refuse the withdrawal of the suit with liberty to bring a fresh suit or allow the entire prayer i.e. permit the withdrawal of the suit with liberty to bring a fresh suit. The reason for this is obvious. If the plaintiff wants to withdraw a suit with liberty to file a fresh suit and if this prayer is refused, he will go on with the suit as it is and the suit will be tried out to a finish.
But if, on the other hand, the Court grants him the permission to withdraw but refuses the permission to institute a fresh suit, the result would be that 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. The view I have taken is supported by the following decisions, namely Nathji v. Languria, AIR 1925 All 272, Jotirmoy Goswamy v. Gobinda Goswamy, AIR 1928 Cal 273 (1), and Marudachala Nadar v. Chinna Muthu Nadar, AIR 1932 Mad 155 (1). I respectfully agree with the view taken in these three cases.
5. The Court, therefore, in this case was wrong in splitting up the prayer under Order XXIII, Rule 1 (2) and acted with material irregularity. The question then is whether I should now refuse the prayer entirely so that the plaintiff may go on with the suit as it is in the trial Court against these three defendants or he should be given permission to withdraw with liberty to file a fresh suit against these three defendants.
I must say that the application of the plaintiff has not been well drafted and gives the impression as if he was withdrawing the suit as he had failed to produce evidence in support of this part of the suit. But it does appear to me that it was a mistake from the very beginning to combine the suit against these three defendants with the suit against the other two set of defendants and probably a plea of misjoinder would succeed.
It also seems to me that it complicates matters unnecessarily if the suit relating to alienation of the property of the family is mixed up with redemption of the property mortgaged with the family. I am, therefore, of opinion that there was sufficient ground of the nature envisaged under Order XXIII, Rule 1 (2) and the Court should have granted permission to the applicant to withdraw the suit against these three defendants with permission to bring a fresh suit. Of course, as the application was made at a late stage, these defendants required to be compensated by payment of their costs incurred in the suit.
6. I, therefore, allow the application and permit the plaintiff applicant to withdraw the suit against defendants Nos. 6, 7 and 8 who are opposite parties Nos. 6, 7 and 8 in this Court, provided the plaintiff pays the entire costs of these three defendants incurred up to 21-5-1954 by them in the suit before he files a fresh suit against them with respect to the claim which he is being permitted to withdraw. I order parties to bear their own costs of this Court because the application of the defendants was not as well drafted as it should have been.