JUDGMENT : Biswanath Rath, J. - This petition has been filed against an order dated 8.2.2013 passed by the Civil Judge (Jr. Divn.), Rourkela in C.S. No.12/2003, thereby partly rejecting an application under Order 23, Rule 1 (3)(b) of C.P.C. at the instance of the plaintiff. 2. Short background involved in the case is that the Civil Suit bearing No.12/2003 was filed at the instance of the present petitioners. After advancement of the suit to a great level, an application at the instance of the petitioners was filed under Order 23, Rule 1 (3)(b) of C.P.C. seeking the leave of the Court for withdrawal of the suit with liberty to file a fresh suit. The defendants objected to such petition and considering the rival contentions of the parties, the said application was disposed of by the trial Court by passing the impugned order. By the impugned order, the trial Court while allowing the application of the plaintiffs for withdrawal of the suit, rejected the prayer for granting liberty to file a suit afresh. 3. In assailing the impugned order, learned counsel for the petitioners submitted that when the trial Court has taken up the application under Order 23, Rule 1 (3) of the C.P.C., it was incumbent upon the trial Court either to allow the application as a whole or to reject the same as a whole and had no business for partly allowing the application thereby affecting the right of the petitioners for filing of a fresh suit. 4. It is next contended that the trial Court in allowing the petition partly has committed error of law and the impugned order is contrary to the provision contained in the statute. Referring to an order of this Court passed in W.P.(C) No.18935 of 2009, learned counsel for the petitioners submitted that this Court in the aforesaid case, has already taken a view that it is incumbent upon the Courts for taking the application under Order 23, Rule 1 (3)(b) of the C.P.C. either to allow the application as a whole or to reject the same as a whole. 5. On the other hand, Mr. Gautam Misra, learned counsel appearing for the opposite party No.3 contended that the suit is of the year 2003, there was a lot of progress in the suit and it was almost at the fag end of the trial. 5. On the other hand, Mr. Gautam Misra, learned counsel appearing for the opposite party No.3 contended that the suit is of the year 2003, there was a lot of progress in the suit and it was almost at the fag end of the trial. Filing of such an application at this stage of the suit, was not only improper but the trial Court while considering such an application since has considered that a serious prejudice is going to be caused to the opposite parties, the impugned order denying the plaintiffs for refilling a fresh suit is justified and warrants no interference of this Court. 6. Relying on a decision as reported in Air 2007 Orissa 31 Mr. Gautam Misra, learned counsel for the opposite party No.3 referring to the paragraph No.4 therein submitted that this Court in the cited case considered the aspect of the prejudice to be caused to the defendant and consequently, rejected grant of leave passed by the Revisional Court. Mr. Gautam Mukherji, learned counsel for the opposite party No.1 while supporting the stand taken by Mr. Gautam Misra further submitted that if the petition under Order 23, Rule 1 (3)(b) of C.P.C. is allowed, the parties will be put to great prejudice. 7. This writ petition has been filed by the plaintiffs-petitioners challenging the refusal part in the impugned order. Admittedly, there is no challenge to the part of the order allowing by any concerned. Order 23, Rule 1 (3)(b) of C.P.C. reads as follows : "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. Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. xxx xxx xxx (3) Where the Court is satisfied,- xxx xxx xxx (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 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." Reading of the aforesaid provision makes it clear that where the Court is satisfied that there are sufficient grounds for allowing the plaintiffs to institute a fresh suit for the subject matter of the present suit or part of the claim thereof, it may on such terms as it thinks fit should grant permission to the plaintiffs to withdraw such suit or such part of the claim with liberty to institute a fresh suit. The provision as quoted herein above has a positive intention. 8. From perusal of the impugned order, it clearly discloses that the trial Court after considering the rival contentions of the parties even though permitted the plaintiffs to withdraw the suit but refused the prayer for granting liberty to file a fresh suit. Looking to the purport of the provision and looking to the prayer of the plaintiffs in the application, the plaintiffs not only sought for withdrawal of the suit but has also sought for liberty to file a fresh suit. Entire reading of the impugned order is totally silent on the prejudice to the other side in the event the plaintiffs are permitted to refile the suit. Be that as it may, present is a case where the trial Court has already permitted the plaintiffs for withdrawing the suit which order is not assailed by any of the aggrieved party. 9. Be that as it may, present is a case where the trial Court has already permitted the plaintiffs for withdrawing the suit which order is not assailed by any of the aggrieved party. 9. This Court in deciding a case in between Sri Krupa Bhoi v. Sri Keshan Majhi & Othrs in W.P.(C) No.18935 of 2009 decided on 1.12.2015 has come to observe that the trial Court in view of the provision contained in Order 23, Rule 1 (3)(b) of the C.P.C. could have either refused to withdraw the suit and granted leave to file a fresh suit or allowed for withdrawal of the suit and leave to file a suit but having allowed for withdrawal had no other opinion than to also grant leave to file a fresh suit. Coming back to the citation cited at the instance of the opposite party No.3 vide AIR 2007 Orissa 31 it is observed here that the reason for withdrawal of the suit and refilling of a fresh suit in the cited decision is not sufficient and the institution of the fresh suit would be greatly prejudice to the other parties on filing of the fresh suit. The cited decision is clearly distinguishable in view of difference in the facts and circumstances involved in the present case. 10. Perusal of the application at the instance of the plaintiffs in the present case gives a clear picture that the plaintiffs were not able to get proper relief so that he had no other option than to file a fresh suit. Further the objection of the defendant No.3 even went to the extent of no objection in the event the plaintiffs are permitted for withdrawal and the only objection therein was that the application was filed at the fag end of the case. The other two defendants have not even filed any objection to the application under Order 23 Rule (1)(3) (b) of C.P.C. 11. Under the circumstances, this Court is of the view that once the trial Court allowed the plaintiffs to withdraw the suit following the provisions contained in Order 23, Rule 1 (3)(b) of C.P.C. the trial Court had no other option than also allow the plaintiff to file a fresh suit. 12. Under the circumstances, this Court is of the view that once the trial Court allowed the plaintiffs to withdraw the suit following the provisions contained in Order 23, Rule 1 (3)(b) of C.P.C. the trial Court had no other option than also allow the plaintiff to file a fresh suit. 12. In view of the above, this Court is inclined to interfere in that part of the order rejecting the prayer of the petitioners for granting liberty to file a fresh suit and sets-aside that part of the order impugned, thereby allowing the application under Order 23, Rule 1 (3)(b) of the C.P.C. as a whole. 13. However, considering the fact that the suit is permitted to be withdrawn after ten years of its institution and in the contesting of the defendants each of the defendants is entitled to Rs. 3,000/- (Rupees three thousands) as cost for their being forced to face an unnecessary litigation, which amount to be paid to each of the defendants within one month hence. 14. The writ petition stands allowed subject to the cost as awarded herein above. Final Result : Allowed