( 1 ) THIS revision is filed against the oitters in I. A. No. 441/1995 in O. S. No. 90/92 on the file of the learned District Munsif, Penukonda. That was a petition filed by the petitioner-plaintiff to permit him to withdraw the suit and file a fresh suit and the same was dismissed.

( 2 ) THE learned Counsel for the petitioner submits that it is mistakenly mentioned the wrong geneology in the suit filed by him and the first defendant is not a necessary party to the suit and he has no right in item No. 2 of the plaint schedule properties and hence, sought for permission to withdraw the suit and file a fresh suit.

( 3 ) THE second respondent filed counter resisting the said request of the petitioner.

( 4 ) THE learned Counsel for the petitioner submits when the plaintiff sought for permission to withdraw the suit, normally the Court should permit the petitioner-plaintiff to withdraw the suit and file a fresh suit and simply because it is a partition suit, permission cannot be denied and he relied on a decision Rizwan Baig v. Municipal Corporation of Hyderabad. 1989 LS 195, wherein this Court held as under : ". . . . The words "formal" technical or even fatal have been employed in various decisions denoting that in case of such defects if the suit fails, if permission for withdrawal of the suit is sought for than it may be granted. Hence, there is nothing magic about the words used as fatal in contra distinction of formal because this word formal has been expressly used in sub-rule (3) (a) of Rule 1, Order 23 C. P. C. In other words, if the formal defect is going to fail the suit, then it is just the same if the defect is styled as fatal because that would equally cause fatal to the suit. Hence, the end result is just the same. If that be so, whenever permission is sought for withdrawal of a suit if the Court is satisfied that a suit must fail because of certain formal defect, then permission may be granted. . . . "the contention of the petitioner that wrong geneology and some defects are mentioned in the plaint is not disputed and in the said circumstances, it is reasonable to permit the petitioner to withdraw the suit and file a fresh suit and I do not find any valid grounds to dismiss the said application.

( 5 ) THEREFORE, the impugned order is set aside and the petitioner is permitted to withdraw the suit and file a fresh suit.

( 6 ) IN the result, the revision is allowed but without costs.