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of <h1>Supreme Court sets aside High Court order, directs disposal of second appeal.</h1> <h3>K.S. Bhoopathy & ORS Versus Kokila & ORS</h3> K.S. Bhoopathy & ORS Versus Kokila & ORS - 2000 AIR 2132 2000 (3) SCR 1168 2000 (5) SCC 458 2000 (6) JT 272 2000 (4) SCALE 640 Issues Involved:1. Application for withdrawal of suit with leave to file a fresh suit u/r Order XXIII Rule 1(3) CPC.2. Exercise of discretion by the High Court in granting permission for withdrawal.3. Impact of withdrawal at the appellate stage on the defendants' rights and judicial time.Summary:1. Application for Withdrawal of Suit with Leave to File Fresh Suit u/r Order XXIII Rule 1(3) CPC:The respondents filed an application u/r Order XXIII Rule 1(3) CPC seeking permission to withdraw their suit with leave to file a fresh suit. The application was based on the assertion that no prayer for declaration of the plaintiffs' title over the pathway was made in the original plaint, and due to the cloud raised against their exclusive title and right of user by the lower appellate court's judgment, it was necessary to withdraw the suit and file a fresh one properly constituted.2. Exercise of Discretion by the High Court in Granting Permission for Withdrawal:The High Court allowed the application for withdrawal of the suit with leave to file a fresh suit. The appellants contended that the High Court erred in entertaining the application at a stage when the second appeal had not been admitted and without formulating any substantial question of law. The Supreme Court emphasized that the discretion u/r Order XXIII Rule 1(3) CPC must be exercised with caution and circumspection, considering all relevant aspects, including the sufficiency of grounds for allowing the plaintiff to institute a fresh suit on the same cause of action.3. Impact of Withdrawal at the Appellate Stage on the Defendants' Rights and Judicial Time:The Supreme Court noted that granting permission for withdrawal at the appellate stage could result in the nullification of the appellate court's order and prejudice the defendants by depriving them of the benefit of the decision in their favor. The Court highlighted that such permission should not be granted if it would result in the wastage of public time and judicial resources. The High Court's approach, which focused on safeguarding the defendants' right to use the pathway until the final adjudication, was deemed erroneous. The Supreme Court held that the High Court failed to consider the proper grounds and reasons for granting permission for withdrawal.Conclusion:The Supreme Court set aside the High Court's order granting permission for withdrawal of the suit with leave to file a fresh suit. The appeal was allowed with costs, and the High Court was directed to proceed with the disposal of the second appeal in accordance with the law.
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