TMI Blog1958 (8) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... , he prayed for possession of house said to have been sold to these three defendants. The case of these three defendants, however, was that the house in question belonged to them and had been mortgaged by their ancestors to the ancestors of the plaintiff and all that these defendants had done was to redeem the house. 2. The suit went on against the three sets of defendants and when it was about to come to an end, an application was made on 21-5-1954 by the plaintiff for permission to withdraw the suit against defendants Nos. 6, 7 and 8 with liberty to file a separate suit. It was said on his behalf that he had made a mistake in treating this property, which had been mortgaged in the family as the property of the family and there was, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where the plaintiff applies under Order XXIII, Rule 1 (2) what he wants is that he should be permitted to withdraw the suit with permission to institute a fresh suit. If a plaintiff merely desired to withdraw a suit all he had to do is to make an application under Sub-rule (1). Therefore, when an application is made under Sub-rule (2), it is not open to the Court to treat it as if it is an application under Sub-rule (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit. I am of opinion that the prayer under Sub-rule (2) must be treated as one whole and the Court may either reject the entire prayer, namely refuse the withdrawal of the suit with liberty to bring a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en permission to withdraw with liberty to file a fresh suit against these three defendants. I must say that the application of the plaintiff has not been well drafted and gives the impression as if he was withdrawing the suit as he had failed to produce evidence in support of this part of the suit. But it does appear to me that it was a mistake from the very beginning to combine the suit against these three defendants with the suit against the other two set of defendants and probably a plea of misjoinder would succeed. It also seems to me that it complicates matters unnecessarily if the suit relating to alienation of the property of the family is mixed up with redemption of the property mortgaged with the family. I am, therefore, of o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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