( 1 ) IN this Civil Revision under section 115 of the Civil procedure Code, challenge is to the order dated 15-12-1997 passed by 2nd Joint civil Judge (Junior Division) Khamgaon, District Buldhana in Regular Civil Suit no. 40 of 1997 instituted by present respondent permitting him to withdraw said suit with liberty to file fresh one.

( 2 ) I have heard Advocate Shri Paliwal for Revision applicant. Nobody has appeared for respondent though served. Advocate Paliwal has invited attention to impugned order and also to the provisions of Order 23 Rule 1 of Civil Procedure code to contend that the Court below has exercised jurisdiction not available to it. He argues that failure to claim relief or defect in drafting of plaint is not in defect of formal nature so as to enable the Court to exercise powers under said provision. In support he has placed reliance upon judgment of Honble Apex court reported at AIR 2000 SC 2132 between K. S. Bhoopathy vs. Kokila.

( 3 ) PERUSAL of impugned order reveals that the defects pointed out by present respondent in his application under Order 23 Rule 1 are about the drafting of plaint by his counsel, mis-joinder of the parties, non-payment of proper Court fees, non-valuation of suit property and not claiming proper reliefs. The suit is for declaration and injunction with grievance that defendant has committed encroachment on property of present respondent. It is plaintiffs case that the defendant/present revision applicant encroached upon portion of his property in his absence on 21-2-1997 but relief for declaration about encroachment, its extent, restoration of possession and return of material illegally taken away by defendant as also relief of permanent injunction are not sought for inadvertently. It is contended that therefore suit suffers from material defects which cause prejudice to plaintiff and hence he should be permitted to withdraw it with liberty to file fresh on same cause of action. It is also added that defects are of formal nature. The revision applicant opposed withdrawal on the ground that he had already filed written statement and disclosed his defence. The defendant pointed out that two separate applications were moved by plaintiff for amendment of plaint and same were opposed by defendant. The trial Court while passing the impugned order only mentioned AIR 1972 P and H 30, AIR 1971 Maysore 334, air 1983 Madras 160, AIR 1989 NOC (Orissa) 193, AIR 1961 Punjab 421. However it held that except AIR 1989 NOC (Orissa) 193 the other rulings were not relevant because there the applications moved under O. 23 R. 1 at fag end of the trial have been considered. So far as AIR 1989 NOC (Orissa) 193 is concerned, it observed that withdrawal of suit cannot be permitted if by amendment the defect can be remedied. Thereafter it found that the counsel for plaintiff did not draft the plaint properly and applications for amendment moved by him were also not proper. It found that the present respondent/plaintiff was not at fault and he was not properly guided by his advocate. It further found that though amendment is possible, the plaint required major changes. It found that amendment of plaint will not be sufficient and as case of plaintiff came within four corners of Order 23 Rule 1, his application deserved to be allowed. It therefore permitted present respondent to withdraw his suit with liberty to file fresh suit on same cause of action subject to costs of Rs. 300/- only.

( 4 ) IT is therefore necessary to find out whether the defects mentioned by respondent above are defects of formal nature as envisaged by Order 23 Rule 1, civil Procedure Code. In AIR 2000 SC 2132, K. S. Bhoopathy vs. Kokila. In said matter the plaintiffs filed a suit and sought relief, inter alia, of injunction against defendants restraining them from establishing and running a flour mill on their property and for further injunction restraining them from disturbing the plaintiffs exclusive user of the pathway lying between the

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