ORDER : (Nupur Bhati, J.) Learned counsel for the petitioner submits that the petitioner/plaintiff had preferred a Civil Original Case No.118/2017 before the learned Civil Judge, Jalore, wherein, an application was filed by the petitioner-plaintiff seeking withdrawal of the suit with liberty to file fresh with new averments. 2. Learned counsel for the petitioner further submits that the learned trial Court vide order dated 12.09.2023 (Annexure-5), permitted the petitioner to withdraw the suit however, the liberty to file fresh suit was not granted to the petitioner. 3. Learned counsel places reliance upon the order dated 16.06.1988 passed by the Himachal Pradesh High Court in the case of Hans Raj Akrot v. State of Himachal Pradesh. The relevant portion is reproduced hereunder:- "It is settled that where a plaintiff makes a prayer for withdrawal of the suit with liberty to file a fresh suit in respect of the subject matter of the suit, the court can permit the withdrawal of the suit coupled with the liberty to file a fresh suit. It cannot refuse that liberty to the plaintiff on its own. If the Court feels that, in the circumstances, brought before it, permission to withdraw the suit should not be granted, it can refuse the prayer by rejecting the application. It is not open to the Court to split up the prayer made by the plaintiff by allowing the withdrawal of the suit and refusing the liberty to institute a fresh suit in respect of the same subject matter." 4. Learned counsel for the petitioner further submits that the application filed by the plaintiff-petitioner has been partially allowed while ordering that the suit is dismissed as withdrawn, however, liberty to file a fresh suit was not given. He further submits that the learned trial Court has erred in allowing the application under Order 23, Rule 1 (3) of CPC partially as the petitioner has been rendered as remediless, and either the application ought to have been allowed or rejected. He further submits that the partially allowing of the application has resulted into irreparable loss to the petitioner-plaintiff. 5. This Court, finds that under the provisions of Order 23, Rule 1 (3) of CPC, a specific provision has been given under which a Court can allow withdrawal of suit and the same reads as under:- "12. He further submits that the partially allowing of the application has resulted into irreparable loss to the petitioner-plaintiff. 5. This Court, finds that under the provisions of Order 23, Rule 1 (3) of CPC, a specific provision has been given under which a Court can allow withdrawal of suit and the same reads as under:- "12. An Application to withdraw the Suit with liberty to file a fresh suit must either be allowed or refused in toto. It is not open to the Court to grant a prayer for withdrawal and refuse the leave. If liberty is refused, the Suit should not be dismissed, but must be retained in the file for Trial / continuation of Trial. If an application is made for withdrawal of the Suit with liberty to file a fresh suit, it is not open to the Court to grant only permission for withdrawal, without liberty to file a fresh suit. If the Court simply allows withdrawal but refuses liberty, the Court would be acting without jurisdiction in dividing the Petition into two parts. It is to be noted that the Application under Order 23, Rule 1 (3) of C.P.C is indivisible whole. The Trial Court was not right in separating the prayer for withdrawal and the leave to file a fresh suit. When the Court has declined to grant leave to file a fresh suit, the Trial Court ought to have dismissed the Application in toto." 6. The Hon'ble Apex Court In the case of Nathji 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 is erroneous. It was held had 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. 7. It was held had 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. 7. As per Order 23, Rule 1 (3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for some reason, for some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute as fresh suit. Although the power to allow withdrawal of the suit is discretionary and the plaintiff is required to make out a case in terms of Order 23, Rule 1 (3) CPC and must ask for leave. The Court can allow the application under Order 23, Rule 1 (3) of CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either Clause A or B i.e. existence of some formal defect or sufficient grounds. 8. In the present case, the petitioner-plaintiff preferred an application under Order 23, Rule 1 (3) of CPC which has been partially allowed by the learned trial Court vide order dated 12.09.2023 (Annexure-5) by which the suit has been dismissed as withdrawn. The petitioner-plaintiff is thus rendered remediless as the suit has been dismissed as withdrawn vide impugned order dated 12.09.2023 (Annexure-5) without affording the petitioner-plaintiff liberty to institute a fresh suit and as the second suit would be barred by doctrine of res judicata, thus, undoubtedly the petitioner-plaintiff is rendered as remediless. 9. This Court, also finds that the Hon'ble Apex Court in the case of Vimlesh Kumari Kulshrestha v. Sambhajirao & Anr. reported in 2009 AIR (SC) 806 has observed that:- "13. In Mulla's The Code of Civil Procedure, Seventeenth Edition, page 674, it is stated "(g) Permission need not be Express The permission mentioned in this section need not be given in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. It is sufficient if it can be implied from the order read with the application on which the order was made. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. However, if either from the application of the plaintiff or from the order permitting withdrawal, it transpires that while permitting withdrawal, the court had also granted liberty to institute fresh suit, the subsequent suit would be barred. Thus, in a case, the Delhi High Court held that the words 'without prejudice to the right of plaintiff' endorsed on the application for withdrawal would only mean that the suit was sought to be withdrawn as compromised and not on merits. An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the court was that 'The application is, therefore, allowed while permitting the plaintiff to withdraw the suit'. It was held that this should be construed as an order also granting liberty, as prayed. The court cannot split the prayer made by the applicant." 10. This Court also finds that in another case, the High Court of Judicature at Bombay titled as Chandrakant Pandurang Shingade & Ors. v. Shri. Walchand Gulabchand Bora & Ors. (Civil Revision Application No.264/2014) vide order dated 06.08.2019 has held that prayer for withdrawal and liberty to file fresh suit cannot be split up in two parts i.e. withdrawal and liberty to file fresh suit has to be allowed as whole or rejected and has further held that if an application is made for withdrawal of the suit with liberty to file fresh then, it is not open for the Court to grant only permission for withdrawal without liberty to institute the proceedings afresh. The relevant portion of the case of Chandrakant Pandurang Shingade & Ors. v. Shri. Walchand Gulabchand Bora & Ors. is reproduced hereunder:- "7. Contention of the Applicant that though Plaintiff was permitted to withdraw the suit but in absence of express liberty to institute fresh suit, second suit was not maintainable, cannot be accepted. In as much as prayer for withdrawal and liberty to file fresh suit cannot be split up in two parts viz. withdrawal and liberty to file fresh suit. It has to be allowed as whole or rejected as whole. In as much as prayer for withdrawal and liberty to file fresh suit cannot be split up in two parts viz. withdrawal and liberty to file fresh suit. It has to be allowed as whole or rejected as whole. It is well settled that if an application is made for withdrawal of the suit with liberty to file suit, it is not open for the Court to grant only permission for withdrawal, without liberty to institute the proceedings, though it is open for the Court to reject such application, as held in the case of Mario Shaw v. Martin Fernandez and Anr. reported in AIR 1996 Bombay 116." 11. Thus, as an upshot of the above discussion, this Court finds that the learned trial Court has erred in not granting the liberty to the plaintiff-petitioner to file a fresh suit while dismissing the suit as withdrawn. 12. In view of the above, this Court finds that the trial Court has erred in not granting the liberty to file fresh suit. 13. Accordingly, the writ petition is allowed. The impugned order dated 12.09.2023 (Annexure-5) passed by learned Civil Judge, Jalore in Civil Original Case No.118/2017 (Bhalesingh & Anr. v. Karnaram & Ors.) is quashed and set aside to the extent it refuses to grant liberty to the petitioner-plaintiff to file a fresh suit. The petitioner/plaintiff shall be at liberty to file a fresh suit. 14. Stay petition and all pending applications, if any, stand disposed of.