IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1532 of 2011 Balbir Singh Son of Sri Hori Lal, Resident of Village Nanakmatta, Tehsil Sitarganj, District Udham Singh Nagar. … Petitioner. Versus Baldev Singh, Son of Sri Pyara Singh, Resident of Village Nanakmatta, Tehsil Sitarganj, District Udham Singh Nagar. … Respondent. Mr. Sudhir Kumar & Mr. Anant Kumar Agarwal, Advocates, learned counsel for the petitioner. Mr. Udyog Shukla, Advocate, learned counsel for the respondent. Date September 16, 2011. Hon’ble B.S.Verma, J. (Oral) By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 6-5-2011 passed by the Additional District Judge/Fast Track Court-II, Udham Singh Nagar in Civil Revision No. 74 of 2010, Balbir Singh Vs. Baldev Singh (Annexure No. 5 to the petition) and the order dated 18-10-2010 passed by the Civil Judge (Senior Division) Udham Singh Nagar in Civil Suit No. 27 of 2006 Balbir Singh Vs. Baldev Singh (Annexure No.4). Heard learned counsel for the parties and perused the record including the material placed before this Court. Petitioner-plaintiff Balbir Singh filed a suit for permanent injunction in the Court of the Civil Judge (Senior Division) Udham Singh Nagar, which was registered as Civil Suit No. 27 of 2007, Balbir Singh Vs. Baldev Singh. During the pendency of the suit, the plaintiff-petitioner moved an application for permission to withdraw the suit with liberty to file a fresh suit. The application of the plaintiff-petitioner was opposed by the respondent-defendant contending that the 2 application of the plaintiff can be treated as abandon of suit as per provision of Order 23, Rule 1(1) of the C.P.C. and the application of the plaintiff for withdrawal of suit is not maintainable. The learned trial Court after hearing both the parties has passed the impugned order dated 18-10-2010 partly allowing the application subject to payment of cost of Rs. 1000/- and permitting the plaintiff to withdraw the suit observing that the plaintiff has not disclosed the reasons in his application which would defeat the purpose of the suit or that the suit would fail by reason of those formal defects and the plaintiff would be at liberty to file a fresh suit on the same cause of action. Aggrieved by the said order, the plaintiff-petitioner filed revision before the revisional Court, but the revisional court has dismissed the revision on the same ground by its order dated 6- 5-2011, which gave rise to the present writ petition. Learned counsel for the petitioner has vehemently submitted that both the courts below have committed a manifest error of law in passing the impugned orders. The submission of the learned counsel for the petitioner is that the trial court could have either allowed the application of the plaintiff in toto or have rejected the same, but it was not open to the trial only to grant permission for withdrawal of the suit without liberty to file a fresh suit, when specific prayer was made in the application. Learned counsel for the petitioner has placed reliance in the case of Mario Shaw V. Martin Fernandez and another [AIR 1996 Bombay, 116], wherein it has been observed inter alia in paragraph no. 6 as under:- “It is well settled and if an application is made for withdrawal of the suit with liberty to file a 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.” 3 Learned counsel for the petitioner has also placed reliance in a Division Bench judgment rendered by the Karnataka High Court in the case of D.P.Sharma V. Bangalore Mahanagara Palike and others [AIR 2001 Karnataka 401], wherein referring the judgment rendered by the High Court Himachal Pradesh in the case of Hans Raj Akrot Vs. State of Himachal Pradesh [AIR 1989 HP, Page 43] has observed in paragraph no. 11 as under:- “11. In the second decision, the acting Chief Justice of Himachal Pradesh High Court in Paras 5 and 6 thereof, had held as hereunder (at page 44): “5. 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. It 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. (See Wazir Singh Chhela Blaka Baba Mulangah Shah v. Hidayat Shah Shrida, AIR 1967 Punj 405, Devidas Tulsiram Brijwani v. Commr., Poona Municipal Corpn., AIR 1974 Born 39 and Radha Krishna v. State of Rajasthan, AIR 1977 Raj 131 (DB). 6. The Impugned order of the learned sub-Judge is unsustainable for he has exercised jurisdiction which he did not possession in law. It deserves to be and is set aside.” I have perused the application made by the plaintiff- petitioner and the impugned orders passed by the trial Court as well as revisional Court. The plaintiff-petitioner has specifically made a prayer in the application (paper no. 227-Ka) that permission may be 4 granted with liberty to file a fresh suit. By the order dated 18-10- 2010, the learned trial court has partly allowed the application of the plaintiff so far as permission to withdraw the suit was concerned, but liberty to file fresh suit was not accorded. I am of the considered view that the trial Court should not have split up the prayer made by the plaintiff-petitioner. It was open to the trial court either to have allowed the application in toto or should have rejected the application as a whole. Following the ratio of the judgments referred to above, this writ petition deserves to be allowed, the orders impugned are liable to be set aside and it is a fit case for remand of the matter to the trial Court. The writ petition is allowed. The impugned orders are set aside. The matter is remanded to the trial Court for decision afresh on the application of the plaintiff (paper no. 227-Ka) filed before it in Civil Suit No. 27 of 2006 Balbir Singh Vs. Baldev Singh on merits in accordance with law, after hearing both the parties. (B.S.Verma, J.) RCP