THE HON’BLE SRI JUSTICE R.KANTHA RAO C.R.P.No. 2060 of 2011. ORDER: This revision is directed against the order dt. 18.4.2011 in I.A.No. 58 of 2011 in O.S.No. 100 of 2004 passed by the Prl. Junior Civil Judge, Nizamabad whereby the petition filed by the revision petitioners under Order 23 Rule 1 r/w Section 151 C.P.C. was dismissed. I have heard Sri.T.V.Kalyan Singh, the learned Counsel for the revision petitioners/plaintiffs and Sri.Aditya Krishna Chintapanti, the learned Counsel for the respondent/defendant. The revision petitioners instituted O.S.No. 100 of 2004 on the file of the Prl. Junior Civil Judge, Nizamabad and the subject matter of the suit is a dispute with regard to an extent of Ac. 0.12 gts in S.No. 439 of Bhavani Nagar colony, Nizamabad District. According to the revision petitioners, the defendant occupied the suit land unlawfully and subsequently the revision petitioners after getting surveyed the land came to know that the defendant occupied an extent of Ac. 014 gts in S.No. 440 and not in S.No. 439 and therefore they filed an amendment seeking to permit them to correct the survey number and the same was dismissed by the trial court. The revision petitioners, however, did not file any revision against the said order dismissing the amendment petition and the order has become final. Subsequently, the revision petitioners filed I.A.No. 58 of 2011 under Order 23 Rule 1 r/w Section 151 C.P.C. seeking to withdraw the suit O.S.No. 100 of 2004 and permit them to file a fresh suit on the same cause of action or on a different cause of action, which was dismissed by the trial court, by the order under revision. According to the learned Counsel for the respondent, the defect sought to be rectified by the petitioners is not a formal or technical one and further the petitioners having failed to challenge the order dismissing the amendment petition, they cannot seek permission to withdraw the suit and institute a fresh suit. It was observed by the trial court that since the amendment petition was dismissed on the ground that it alters the nature of the suit and introduces a new case, the revision petitioners are not entitled to file a fresh suit after withdrawing the present suit. The learned Counsel for the revision petitioners relied on a decision of the Supreme Court in Baniram vs. Gaind[1] wherein the Supreme Court held: “Having considered the fact that non-pleading of a point may prove technical and may result in the dismissal of the appeal which may impede a fresh, adjudication of a point is to be made though belated, the Supreme Court considers it just and proper in the interest of justice to permit the appellant/plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action, subject to the payment of Rs. 1000/- by way of costs in additiol to all other costs.” In the instant case also, a mere fact that the amendment petition filed by the revision petitioners seeking to permit them to correct the survey number was dismissed, it does not disentitle the petitioners to institute a fresh suit on the same cause of action or on a different cause of action. I do not agree with the view expressed by the trial court that it affects the case of the defendant or introduces a new case. The trial court is not supposed to insist upon the revision petitioners to proceed with the present suit despite the fact that they want to withdraw the same and institute a fresh suit. The impugned order of the trial court takes away the right of the revision petitioners to institute a fresh suit by withdrawing the present suit. I consider that the order of the trial court is not in accordance with the true spirit of Order 23 Rule 1 C.P.C., which permits withdrawal of the suits. However, in view of the fact that the revision petitioners have filed the present petition more than three years after dismissal of the amendment petition, they shall pay costs of Rs. 2,500/- to the defendant/respondent within a period of one month from the date of this order. The costs shall be deposited into the trial court. In the result, subject to complying with the condition of paying costs as aforesaid, the petitioners are permitted to withdraw O.S.No. 100 of 2004 and file a fresh suit on the same cause of action or on a different cause of action. The order of the trial court in I.A.No. 58 of 2011 in O.S.No. 100 of 2004 is set aside subject to the above condition. There shall be no order as to costs. ____________________ R.KANTHA RAO, J 24.08.2011. KRB. THE HON’BLE SRI JUSTICE R.KANTHA RAO C.R.P.No. 2060 of 2011. ORDER: Dt. 24.08.2011. [1] AIR 1982 Supreme Court 789