Judgment :- The revision petitioners are the plaintiffs in O.S.No.367 of 1997 on the file of District Munsif of Gobichettipalayam. They have filed an application under Order 23 Rule (1)(3) and Section 151 CPC seeking permission of the court to withdraw the suit and to file fresh suit on the very same cause of action and the said petition was allowed to the extent that the petitioners/plaintiffs were permitted to withdraw the suit. But however, permission to file fresh suit on the very same cause of action was refused. Aggrieved by the same, the plaintiffs have preferred this revision petition. 2. Heard the learned counsel for the petitioners and the respondents. 3. In the petition filed before the trial court it is stated that the suit was filed with regard to a cart track, which according to the petitioners is running in SF Nos.679/1,679/2, 679/3 is on the eastern side of the cart track. The respondents 1 and 2 never used the suit cart track. The physical features will also clearly show that the suit cart track is only in S.F.Nos.679/1 and 679/2. Further the respondents in their written statement stated that the suit cart track is running only in S.F.Nos.679/3. The plaintiffs filed application for the appointment of a commissioner to find out the exact position of the cart track. The advocate-commissioner was appointed and also filed report stating that the suit cart track is running in S.F.Nos.679/1, 679/2 and 679/3 also. The plaintiffs came to know about the same only on the report filed by the advocate commissioner. Pursuant to the same, the plaintiffs filed petition to amend the plaint for the inclusion of S.F.No.679/3 and the same was dismissed. The plaintiffs also preferred C.R.P.No.505 of 2003 before this court and it was also dismissed. The plaintiffs have stated that if the suit is proceeded with as it is, there is every possibility to dismiss the suit, as S.F.No.679/3 was not included. The mistake committed was beyond their control and they bonafidely believed that the suit cart track is running in S.F.Nos.679/1 and 2. The said defect could be rectified only by withdrawal of the suit and file a fresh suit on the same cause of action. 4. The mistake committed was beyond their control and they bonafidely believed that the suit cart track is running in S.F.Nos.679/1 and 2. The said defect could be rectified only by withdrawal of the suit and file a fresh suit on the same cause of action. 4. The defendants have resisted the said petition by filing counter, wherein it is stated that the plaintiffs were unnecessarily dragging on the proceedings up to the High Court and stated that they have no objection in allowing the petition with costs. 5. But however, the trial court allowed the petition partly granting permission to the plaintiffs to withdraw the suit, but permission to file fresh suit on the same cause of action was refused on the ground that the plaintiffs have already filed an application for amendment, which was dismissed and the revision filed by the plaintiffs was also dismissed and therefore, the prayer to withdraw the suit and to file a fresh suit on the same cause of action could not be granted. 6.Learned counsel for the petitioners would contend that the plaintiffs have been under the bonafide impression that the suit cart track is running in S.F.Nos.679/1 and 679/2, but the second defendant in his statement had pointed out that the suit cart track claimed by the plaintiffs is running in S.F.Nos.679/3 and the same has been used by defendants 1 and 2. Thereafter the plaintiffs have filed an application to amend the plaint to include S.F.No.679/3 and the same was dismissed. The plaintiffs also preferred a revision in CRP.No.505 of 2003 and the said revision was also dismissed on the ground that the plaintiffs are seeking new relief in respect of S.F.No.679/3 and if the amendment is allowed, it will amount to change the character of the suit. Only in the said circumstances, the plaintiffs left with no option but to file an application for withdrawal of the suit and also sought permission of the court to file a fresh suit on the same cause of action. Learned counsel for the petitioners would contend that there is no remedy available for the plaintiffs under law, except to withdraw the suit and to file fresh suit on the same cause of action. Learned counsel for the petitioners would contend that there is no remedy available for the plaintiffs under law, except to withdraw the suit and to file fresh suit on the same cause of action. It is also submitted that the plaintiffs cannot proceed with the suit as it is, as it has been made out that the suit cart track is running in S.F.Nos.679/3, plaintiffs' endeavor to include the said S.F.No.679/3 in the plaint was not accepted by the trial court and this court also took the view that the inclusion of the said survey number by way of amendment, would amount to change the character of the suit. Therefore, the plaintiffs are left no other remedy to withdraw the suit with a view to file a fresh suit on the same cause of action and therefore, the petition should have been allowed in toto. 7. Learned counsel for the petitioners also submitted that the petition cannot be allowed in part and it should have been allowed in toto or dismissed in toto. In order to support the said contention, learned counsel for the petitioners relied upon the case Marudachala Nadar v. Chinna Muthu Nadar (AIR 1932 Madras 155(1). In the said case also the petitioner/plaintiff filed an application under Order 23 Rule 1(2) for permission to withdraw the suit, with liberty to substitute a fresh suit on the same subject matter. 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. It was held " 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." 8. In Thodi Konda Veeraswami v. Thullam Peda Lakshmudu & others (AIR (38) 1951 Madras 715) it was held "Where a plaintiff files a petition to withdraw the suit with permission to file a fresh suit regarding the same subject matter, under O.23,R.1(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 give him permission to file a fresh suit regarding the same subject matter. The court cannot divide the petition into two & accept the withdrawal & refuse the liberty in the same order." 9. In the case of T.W.Ranganathan v. T.K.Subramaniam (AIR 1971 Madras 477) it was held that when the petitioner seeks to withdraw the suit with liberty to file a fresh suit on the same cause of action, the court cannot direct the withdrawal of the suit without giving the liberty sought for. If the court disallows the liberty sought for it should dismiss the application and allow the suit to proceed. 10. By relying upon these rulings and principles stated therein, it was argued on behalf of the petitioners that the order of the trial court is in the nature that the permission sought for to withdraw the suit alone was allowed, but permission to file a fresh suit on the same cause of action was disallowed and the same cannot be done in view of the views taken by this court in the decisions referred supra. 11.On the contrary, learned counsel for the respondents would contend that the plaintiffs have already filed an application for amendment and the same was dismissed and CRP.No.505 of 2003 filed by the plaintiffs also came to be dismissed. As such the plaintiffs' application seeking permission of the court to withdraw the suit is permissible. But permission sought for by the plaintiffs to withdraw the suit and to file a fresh suit on the same cause of action is not permissible. It is also open to the plaintiffs to conduct the suit as it is or to withdraw it simply and the permission sought for by the plaintiffs to file fresh suit on the same cause of action cannot be granted and that thereby argued in support of the order passed by the trial court. 12. Learned counsel for the respondents has also relied upon K.S.Bhoopathy & Others v.Kokila & Others (2000) 5 Supreme Court Cases 458) wherein the Supreme Court had observed "The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. 12. Learned counsel for the respondents has also relied upon K.S.Bhoopathy & Others v.Kokila & Others (2000) 5 Supreme Court Cases 458) wherein the Supreme Court had observed "The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub rule (1).....No doubt, the grant of leave envisaged in sub rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Clause (b) of sub rule(3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action." The Apex Court has also considered the case where a similar application was filed before the appellate court and in such an event, it was held that if the application is filed before the appellate court to withdraw the suit under Order 23 Rule 1(3)CPC, the appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. This view was taken for consideration of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. 13. Now we have to consider whether the application filed by the plaintiffs satisfied the requirements of Order XXIII Rule 1(3)CPC. This view was taken for consideration of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. 13. Now we have to consider whether the application filed by the plaintiffs satisfied the requirements of Order XXIII Rule 1(3)CPC. As I have already seen Order XXIII Rule 1(3)(a)CPC states that the suit must fail by reason of some formal defect (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. The plaintiffs in the present case have filed a suit in respect of two survey numbers on the ground that the suit cart track is running in those survey numbers. Subsequently, the plaintiffs filed an application to amend the plaint that the suit cart track is running in S.F.Nos.679/3. In order to have proper adjudication of the suit, the plaintiffs have filed an application for amendment and do so. Unfortunately, the petition filed by the plaintiffs for amendment was dismissed. The revision filed by the plaintiffs was also dismissed by this court on the ground that it would amount to change the character of the suit. In the said circumstances, the plaintiffs left with no other alternative remedy except to withdraw the suit and to file fresh suit on the same cause of action. 14. It is made out that if the suit is prosecuted as it is, the suit will fail, because of the defects pointed out by the defendants, in which case, the rights of the parties would be short-circuited and it is not in the interest of justice. The plaintiffs came to know about the defects only on the report filed by the advocate commissioner that some other survey number is also running in the suit cart track, immediately they had taken necessary steps by filing an application to amend the plaint to include that survey number, but to amend the plaint was not allowed. That is also one of the compelling circumstances in the present case, where the plaintiffs sought permission to withdraw the suit and to file fresh suit on the same cause of action. 15. That is also one of the compelling circumstances in the present case, where the plaintiffs sought permission to withdraw the suit and to file fresh suit on the same cause of action. 15. As far as the withdrawal of the suit is concerned, it has been rightly held by this court in AIR 1932 Madras 155 and also in AIR (38) 1951 Madras 715, the court below either should have dismissed the application in toto, thereby permitting the plaintiffs to prosecute the suit or to withdraw the suit. But the trial court allowed the petition in part and dismissed the other part of the prayer that is, seeking permission to file a fresh suit on the same cause of action and the same, is not proper and correct. That apart, if the plaintiffs are not permitted to file a fresh suit on the same cause of action, the very right which they claimed in the suit would be at stake and the right will be jeo-paradised. In the said view of the matter, this court feels that the petitioners/plaintiffs must be permitted to withdraw the suit and an opportunity must be given to them to file a fresh suit on the same cause of action but however the said suit would be subject to objections that would be raised by the defendants, including the law of limitation. 16. For the reasons stated above, the order passed by the District Munsif of Gobichettipalayam in I.A.No.533 of 2003 in O.S.No.367 of 1997 dated 4.8.2003 is set aside and this revision petition is allowed. But however, the petitioners/plaintiffs are given two months' time from the date of receipt of a copy of this order to file fresh suit on the same cause of action. It is made clear that in the event the plaintiffs file a fresh suit on the same cause of action, it is open to the defendants to set forth all the defences available with them including the limitation and the court would consider all the defences by framing proper issues and try the suit in accordance with law, without being influenced by any of the observations made by this court in this order. No costs. Consequently, no order is necessary in C.M.P.No.14100 of 2003 and the same is closed.