RSA No. 693 of 2008 04.11.2009 Present: Ms. Kamlesh Shandil, counsel for the appellant. Mr. K.D. Sood, counsel for respondent No. 1. C.M.P. No. 605 of 2009: This order shall dispose of the application filed by the applicant/appellant under 23 Rule 1(3) C.P.C. for withdrawal of the suit with liberty to file a fresh suit in respect of the same subject matter on the same cause of action. A notice of the application was issued to the respondent(s) who opposed the application. I have heard the learned counsel for the parties and have gone through the record of the case. The facts of the case are very clear that the appellant as plaintiff filed a suit for declaration and permanent injunction as against the respondents who were impleaded as defendants. The plea of adverse possession was also taken by the plaintiff and on conclusion of the trial, the learned trial Court held that the plaintiff has not become the owner of the suit land by way of adverse possession and accordingly, the suit of the plaintiff for declaration based on adverse possession was dismissed, though the defendants were restrained from causing interference in possession of the plaintiff over the suit land except in accordance with law or till the plaintiff is not ejected from the suit land in due course of law. …2… An appeal was preferred by the plaintiff, which was dismissed by the learned Additional District Judge. Second appeal was preferred by the appellant before this Court, which is pending and during pendency of the appeal, the present application has been filed. It was submitted by the learned counsel for the applicant/appellant that the plaintiff could not take the plea in regard to the oral sale having been effected in favour of his father and there are revenue entries also, but these facts were not taken into account by the counsel for the plaintiff at the time of filing of plaint and accordingly, the suit was filed for ownership by way of adverse possession only. It was alleged that this was a bonafide mistake and the plaintiff should be permitted to file a fresh suit in respect of the same subject matter on the same cause of action. To substantiate her plea, learned counsel for the applicant/appellant had relied upon the decision of the Apex Court in Baniram and others Vs. Gaind and others, AIR 1982 Supreme Court 789. A perusal of the same shows that in that case also, the plea was made for permission to withdraw the suit and file the same on the same cause of action. It is clear from a perusal of this decision that there was non pleading of a particular point and it was observed that non-pleading of a point in the plaint may prove a technical impediment and may result in the dismissal of the appeal and accordingly, the permission was given to withdraw the suit subject to Rs.1,000/- as costs. …3… The above decision clearly applies to the present facts since no limitation has been fixed on exercise of the powers for withdrawal of the suit and the point considered was that a fact was not pleaded in the plaint, which now the plaintiff wanted to plead by filing a fresh suit. There is nothing to show that a new point cannot be allowed to be taken at the time of withdrawal of the suit with liberty to file a fresh suit on the same cause of action and the above decision clearly applies to the present facts. In view of the above, it is clear that the applicant/appellant is entitled to withdraw the suit and permission has to be given to file a fresh suit on same cause of action subject to deposit of Rs.10,000/- as costs payable to defendants, which shall be paid by the applicant/appellant before filing the fresh suit. The applicant/appellant may file fresh suit within a period of sixty days from today. The application is accordingly allowed. RSA No. 693 of 2008: In view of the fact that the appellant has been allowed to withdraw the suit and permission has been given to file a fresh suit, the appeal filed by the appellant has become infructuous and is dismissed accordingly. November 04, 2009 ( V.K. Ahuja ), J. (BSS)