Judgment : This Civil Revision Petition is filed under section 115 of CPC challenging the order dt. 26/10/2010 in I.A.No. 569 of 2010 in AS.No. 59 of 2008 on the file of the Court of Judge, Family Court-cum-Additional District and Sessions Judge, Nalgonda. 2. The petitioner was the plaintiff in OS.No. 91 of 2006 on the file the Court of Senior Civil Judge, Nalgonda. He filed the said suit against the respondents for partition and separate possession of his 1/3rd share in the plaint schedule properties and also sought a declaration that certain gift deeds bearing Nos. 3232 and 3233 dt. 20/05/2002 are not binding on him. By judgment and decree dt. 02/6/2008, the said suit was dismissed. 3. Challenging the judgment in the suit, the petitioner had filed AS.No. 59 of 2008 before the Family Court-cum-Additional District and Sessions Judge, Nalgonda. 4. While the appeal was pending he filed I.A.No. 569 of 2010 under Order-XXIII, Rule 1 [3] [b] stating that he would like to withdraw the appeal with liberty to file a fresh suit for declaration of his title and recovery of possession of the property against the respondents, and that the appeal be dismissed as not pressed ,giving liberty as sought by him. 5. By order dt.26/10/2010 I.A.No. 569 of 2010 was allowed and AS.No. 59 of 2008 was dismissed as not pressed “without reserving any right to the appellant to institute a fresh suit” as sought by him. Aggrieved thereby, this revision is filed by the petitioner. 6. Heard the counsel for the petitioner and the counsel for the respondents. 7. The counsel for the petitioner contended that where an application was filed under Order-XXIII, Rule-1 [3] [b] of CPC it is not open to the court to treat it as if it is an application under Order-XXIII, Rule-1 [1] without any condition and grant prayer for withdrawal of the appeal while refusing the permission to bring a fresh suit. He relied upon a decision in THADI KONDA VEERASWAMY V/s. THULLUM PEDA LAKSHMUDU AND ORS (AIR [38] 1951 MADRAS-715), and KANTIBHAI D. PATEL AND ORS. V/s. AHMEDABAD MUNICIPAL CORPORATION (1998 AIHC 1594 [GUJARATH HIGH COURT]). He further contended that no reason has been assigned by the court below for passing this order. 8. He relied upon a decision in THADI KONDA VEERASWAMY V/s. THULLUM PEDA LAKSHMUDU AND ORS (AIR [38] 1951 MADRAS-715), and KANTIBHAI D. PATEL AND ORS. V/s. AHMEDABAD MUNICIPAL CORPORATION (1998 AIHC 1594 [GUJARATH HIGH COURT]). He further contended that no reason has been assigned by the court below for passing this order. 8. The counsel for the respondents on the other hand contended that the petitioner had filed a separate suit for partition subsequently and is harassing the respondents by filing suit after suit and it is impermissible for him to do so. 9. I have noted the submissions of both sides. 10. The question which arises for consideration in this case is whether the court below could have allowed I.A.No. 569 of 2010 and dismissed AS.No.59 of 2008 as not pressed, while declining the prayer of the petitioner/appellant therein to give him permission to file a fresh suit. Admittedly in the application filed by the petitioner, he specifically sought permission to file a fresh suit while seeking to withdraw the appeal. So the application was filed under Order-XXIII, Rule-1 [3] [b] of CPC and it was not an application under Order XXIII, Rule-1 [1] seeking withdrawal of the appeal without seeking permission to file a fresh suit. Therefore, the court below could not have dismissed the appeal as withdrawn while declining permission to the petitioner to file fresh suit. 11. I am fortified in taking this view by the decision of the Madras High Court in THADIKONDA VEERASWAMY [1-supra]. The said court while considering Order-XXIII, Rule-1 [2] [which is in parimetria with Order-XXIII, Rule-1 [3] CPC after the amendment to the CPC made by section 74 of CPC [Amendment] Act 104/1976 w.e.f. 01-2-1977] observed: Order-23m Rule 1 [2] CPC contemplates a withdrawal from the suit with liberty to bring a fresh suit. Here the plaintiff must ask for leave and must make out a case within cl. (a) or (b), the court has no jurisdiction to allow such withdrawal with liberty unless the suit must fail by reason of some formal defect, under cl. (a) or unless there are “othger sufficient grounds” for allowing the plaintiff, to institute a fresh suit regarding the same subject-matter ybder ck, (b), See Harshamukhi v. Sarat Chandra, 32 c. W.N. 1244 : [117 i.C. 864] and Rajkumar v. Ram Khelawan Singh, AIR [9] 1922 Pat-44: (1 Pat 90 F.B.) . (a) or unless there are “othger sufficient grounds” for allowing the plaintiff, to institute a fresh suit regarding the same subject-matter ybder ck, (b), See Harshamukhi v. Sarat Chandra, 32 c. W.N. 1244 : [117 i.C. 864] and Rajkumar v. Ram Khelawan Singh, AIR [9] 1922 Pat-44: (1 Pat 90 F.B.) . An application to withdraw a suit with liberty to file a fresh suit regarding the same subject-matter must be either allowed or refused in toto. If liberty is refused, the suit should not be dismissed at once but retained for trial in the usual course. See Marudachala v. Chinna Muthu, 1931 m. W.N. 1148:L (AIR (19) 1932 Mad. 155) . The court cannot divide the petition into two, and accept the withdrawal and refuse the liberty in the same order. It is bound to give the facts and reason when giving the liberty to file a fresh suit regarding the same subject-matter. See Shamnandan v. Mulchand, 1 P.I. T. 292 : [AIR (8) 1921 Pat. 360}, Sukumar v. Chairman, District Board of Gaya, AIR [22] 1935 Pat-251 : (155 i.c. 210) and Reazuddin V. Mirsajid Husain, AIR (31) 1944 all. 224: (I. 1.r. (1944) all. 396), Abdul v. Mohammed, AIR (34) 1947 Mad. 59: (229 i.c. 267) and Subhashini v. Ashutosh, 39 C.I. J. 731: (AIR (11) 1924 Cal. 751). “Other sufficient grounds” in cl. (b) has been interpreted to mean “grounds ejusdem generic to those mentioned in cl. (a)” or atleast analogous to them. See Mahulla v. Hemangini Debi, 11 C.I.J. 512: (6 I. c. 629), Nagamma v. Lakshminarasu, AIR (15) 1928 Mad. 1085 : (112 i.c. 312), Sukumar v. Chairman, D.B. Gaya, AIR (22) 1935 Pat.251 : (155 i.C. 210), and Rama Rao v. Appanna, AIR )27) 1940 Bom.121 : [I.I.R. (1940) Bom. 299 F.B.]. 12. Similar view has taken by the Gujarath High Court in KANTIBHAI D. PATEL [2-supra]. It was observed in this case : 7. From the phraseology used in Order-23, Rule (1) it becomes evident that sub-rule (1) of Rule 1 of Order XXIII, CPC gives the plaintiff an option to withdraw a suit or abandon part of a claim. If a plaintiff merely desires to withdraw a suit, all he has to do is to make an application under sub-rule (1) of Rule-1 of Order-23 CPC and seeking permission to withdraw the suit. If a plaintiff merely desires to withdraw a suit, all he has to do is to make an application under sub-rule (1) of Rule-1 of Order-23 CPC and seeking permission to withdraw the suit. Under this sub-rule, the plaintiff may withdraw any part of the claim and there are no conditions attached to such withdrawal. Sub-rule (2) makes provision as to what should be accompanied with an application seeking leave of the Court to withdraw claim made on behalf of the plaintiff, who is minor. Then comes sub-rule (3) 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 of the suit so withdrawn. Where the plaintiff applies under sub-rule (3), what he wants is that he should be permitted to withdraw the suit with permission to institute a fresh suit. Therefore, when an application is made under sub-rule (3), 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. The prayer under sub-rule (3) must be treated as one prayer 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 that the plaintiff would be deprived of carrying on w8th the suit as best as he can and would also not be permitted to file a fresh suit on the same cause of action. An application under Order-23(1) sub-rule (3) for permission to withdraw from suit with liberty to institute a fresh suit on the same subject matter must be treated as an individual 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 dismissed altogether and the suit should be retained on the file. 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 fresh suit about the same subject matter into two parts. 13. The Karnataka High Court also taken a similar view in K.Y. SIDDARAJU V/s. GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS AND ANR (1999 AIHC 4256 [KARNATAKA HIGH COURT]). It held: 4. This Court in the case of Bhutha v.s Baburao, AIR 1975 Kar. 101 , has quoted with Thadi Konda Veeraswami v. Thullum Peda Lakshmudu, AIR 1951 Madras 715 and proceeded to lay down the proposition as quoted herein below :- 5. I find considerable force in the contention of Shri Cheluvaraju. In Veeraswamy v. Lakshmudu, AIR 1951 Madras 715, it is observed as follows : “Where a plaintiff files a petition to withdraw the suit with permission to file a fresh suit regarding the same subject-matter, under Order-23 Rule 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 and accept the withdrawal and refuse the liberty in the same order”. Similar is the view expressed by K.N. Wanchoo, C.J. in Naru v. Mt.Noji, AIR 1959 Raj. 53 . It is held therein as follows : “If a plaintiff merely desires to withdraw a suit all he has to do is to make an application under sub-rule (1) of Rule-1 of Order-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. Therefore, when an application is made under sub-rule (2), it is not open to the court to treat it as 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. 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 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 to bring a fresh suit. The reason is that if the court grants him the permission to withdraw but 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.” 14. The counsel for the respondents cited judgment of the Supreme Court in KANDAPAZHA NADAR AND ORS. V/s. CHITRAGANIAMMAL AND ORS (AIR 2007 SUPREME COURT 1575). In that case it was held that “effect of an order of the court allowing withdrawal of a suit, without liberty to file a fresh suit, without any adjudication is that such an order does not constitute “decree” and would not debar defendants from taking defence in second round of litigation. The Supreme Court in the above decision in fact approved the decision of Allahabad High Court in NATHIJI V/s. LANGURIA (AIR 1925 ALLAHABAD 272), [which has taken a view similar to the Madras High Court in THADIKONDA VEERASWAMY [1-supra]. The Supreme Court held : 15. In the case of Nathiji and another v. Languria and another (AIR 1925 Allahabad 272), it has been held that where in the case of an application to withdraw a suit in terms of Order-23, Rule 1 (2), CPC the Court allows the suit to be withdrawn but refuses permission to bring a fresh suit, the Court’s order in erroneous. It was held that if the trial Court saw no reason for allowing the withdrawal in terms of Order-23, Rule 1 (2), the trial Court should have refused the application seeking liberty to file a new suit and it should have proceeded with the suit on merits. 16. In this view of the matter, the order of the court below dt. 26/10/2010 in IA.No. 569 of 2010 in AS.No. 59 of 2008 cannot be allowed to stand. Therefore, the said order is set aside. 16. In this view of the matter, the order of the court below dt. 26/10/2010 in IA.No. 569 of 2010 in AS.No. 59 of 2008 cannot be allowed to stand. Therefore, the said order is set aside. Both I.A.No. 569 of 2010 and AS.No. 59 of 2008 are restored to the file of the court below. The court below shall decide afresh after hearing both sides and giving reasoned order as to whether IA.No. 569 of 2010 should be allowed in toto or dismissed in toto. This exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. 17. With the above direction, the Civil Revision Petition is allowed. No costs.