MAHESH CHANDRA, J. (Oral) ( 1 ) THIS revision petition is directed against the order dated 29th August, 1988 of Shri M. K. Gupta, Sub Judge, 1st Class, Delhi whereby application filed by the plaintiff that "the plaintiff be allowed to withdraw the suit in the interest of justice with permission to file fresh suit for fair trial of the matter under controversy" was dismissed and it was further directed that the suit be also dismissed as withdrawn. Feeling aggrieved this revision petition has been filed. ( 2 ) THE facts giving rise to this petition are that plaintiff Smt. Raj Bala alleging herself to be the tenant of predecessor-in-interest of the respondent had filed a suit for injunction to restrain them from in any manner interferring with her possession or dispossessing her except in due course of law. The plaint in the said suit was later amended by the petitioner-plaintiff under Order 6 rule 17 Civil Procedure Code and the application for withdrawal was filed thereafter. ( 3 ) THE impugned order had been passed as the learned trial court had come to the conclusion that the plaintiff-petitioner had failed to bring out any formal defect on account of which the suit was likely to fail within the meaning of Order 23 rule 11 (3) Civil Procedure Code and consequently there were no grounds to grant permission to the plaintiff to file a suit afresh on the same cause of action and in consequence the application was dismissed and along therewith suit was also dismissed. Learned counsel for the petitioner-plaintiff has made a limited submissions that the plaintiff had not filed the application for withdrawal of the suit simplicitor and rather his application was "to withdraw the suit in the interest of justice with permission to file afresh suit" and as such his application was one under Order 23 rule 1 (3) Civil Procedure Code rather under Order 23 rule 1 (1) Civil Procedure Code and consequently if the court did not want to allow the application it could not dismiss the suit also. ( 4 ) IN this behalf my attention has been drawn to provision of order 23 rule I Civil Procedure Code which lay down as under : "order 23 rule 1.-Withdrawal of suit or abandonment of part of claim (1) at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also. if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the court is satisfied,- (a) that a suit must fail by reason of some formal defect. or (b) that here are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. it may, on such terms as it thinks fit. grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3 ). he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub rule (1) or to withdraw, under sub rule (3) any suit or part of a claim, without the consent of the other plaintiffs. " ( 5 ) I have seen the copy of the application for withdrawal of the suit filed on record. No provision of law has been mentioned therein. " ( 5 ) I have seen the copy of the application for withdrawal of the suit filed on record. No provision of law has been mentioned therein. However, from the perusal of the said application it can be concluded that this was an application under Order 23 rule 1 (3) Civil Procedure Code to withdraw the suit in the interest of justice with permission to file fresh suit. It was no where indicated that the plaintiff wanted to withdraw the suit absolutely and consequently the application could not be deemed to be one Order 23 rule 1 (1) Civil Procedure Code and as such certainly there is force in the submission of the learned counsel for the petitioner. Where the plaintiff requests the court for permission to withdraw the suit with permission to file a fresh suit, permission has to be either granted or refused. Where the permission is refused, then only the application can be dismissed and the suit cannot be dismissed. The court cannot in an application under Order 23 rule 1 (3)CPC while refusing to grant permission to file a fresh suit on the same cause of action have recourse to provisions of Order 23 rule 1 (1) CPC and dismiss the suit as well. The scope of Order 23 rule 1 (i) Civil Procedure Code and Order 23 rule 1 (3) Civil Procedure Code is altogether different. Order 23 rule 1 (1) Civil Procedure Code confers absolute right of withdrawal or abandonment which is not the same as withdrawal with liberty to file a fresh suit on the same cause of action under Order 23 rule 1 (3) Civil Procedure Code. These are two distrinct and different matters governed by Order 23 rule 1 Civil Procedure Code. When the suit is abandoned or withdrawn under Order 23 rule 1 (1)CPC it visits him with certain consequences set out in sub-rule 4 which is not the case when withdrawal is sought under Order 23 rule 1 sub rule (3) CPC. In the latter case the plaintiff has a right to file a fresh suit on the same cause of action. On principle an application filed by the plaintiff under sub-rule (3) cannot be treated at par with an application filed by him to exercise the absolute liberty given to him under sub-rule (1 ). In the latter case the plaintiff has a right to file a fresh suit on the same cause of action. On principle an application filed by the plaintiff under sub-rule (3) cannot be treated at par with an application filed by him to exercise the absolute liberty given to him under sub-rule (1 ). When the court proceeds to dispose of an application filed under Order 23 rule 1 (3)CPC and comes to the conclusion that there did not exist circumstances justifying the grant of permission to withdraw the suit with liberty to file fresh suit, the court could proceed to dismiss the application but in such event the suit remains alive and any other order made like the one made in this case of dismissal of the suit would be uncalled for. The suit of the plaintiff could not have been dismissed in these circumstances. ( 6 ) FROM the perusal of the impugned order, I find that after the court had arrived at a decision not to grant permission to file a suit afresh on the same cause of action. II was not even enquired from the plaintiff at all whether in the event of permission not being granted to file a suit afresh on the same cause of action. , he would still be prepared to withdraw the suit. Though Order 23 does not enjoin upon the court to put the plaintiff to such an election, none the less in the peculiar circumstances of the dismissal of the application, it would be proper and necessary tc put the plaintiff to such an option in as much as if suit is also dismissed a fresh suit would be barred under sub-rule (4) of Order 23 and the plaintiff would be left with no remedy. In such a situation both in law and in equity the plaintiff is entitled to continue to proceed with his suit as it was framed on the date of dismissal of the suit. It is difficult in these circumstances lo uphold the order. ( 7 ) CONSIDERING this situation this civil revision petition is liable to be allowed and is accordingly allowed. The impugned order dismissing the suit as withdrawn is set aside and while confirming the order of dismissal of the application, the suit is ordered to be restored on its original number and proceeded with as it stands. ( 7 ) CONSIDERING this situation this civil revision petition is liable to be allowed and is accordingly allowed. The impugned order dismissing the suit as withdrawn is set aside and while confirming the order of dismissal of the application, the suit is ordered to be restored on its original number and proceeded with as it stands. Revision petition stands disposed of. No orders as to costs. ( 8 ) PARTIES are directed to appeal before the trial court on 18th September, 1989.