Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.

2. This Civil Revision Application takes exception to the order dated 19th April, 2012 below Exhibit-40 in Regular Civil Suit No. 222 of 2010 passed by the 5th Joint Civil Judge, Junior Division, Beed.

The back ground facts as disclosed in the Civil Revision Application for filing the same are as under:

3. The applicants are original plaintiffs. The applicants instituted suit praying therein for removal of encroachment by the respondent and for perpetual injunction.

According to the applicants, the property over which the suit is filed is Grampanchayat Property No. 320/City Survey No.735. The total measurement of CTS No. 735 is 22 x 60 feet. It is the case of the applicants that, out of 22 x 60 feet, 5 x 60 feet is disputed. It is the contention of the applicants that, non applicant in collusion with Gramsevak of village created false record; relying on the said record, the non-applicant is trying to encroach upon the land owned by the applicants. It is further case of the applicants that, on 9th May, 2010 wrong entry is taken over the papers relating to the suit property and the non-applicant is raising illegal construction over the suit property and therefore, the plaintiffs prayed for decree of mandatory injunction. The plaintiffs urged for an order of restraining the non-applicant from encroaching upon their land.

4. The non-applicant appeared in the suit and filed his written statement. The non-applicant has denied the applicants' case. It is his case that, the suit land was originally owned by one Shekuji. Thereafter, Haridas and Hiralal became the owners. After Hiralal's death, his wife Sonabai became the owner of the property. From Sonabai, the non-applicant's grandmother became the owner. After grandmother, non-applicant's father recorded non-applicant's name in the village record.

The suit was filed by the plaintiffs on 17th May, 2010. On 14th June, 2010 issues were framed. It is the case of the applicants that, subsequently the applicants appointed new Counsel before the trial Court to plead their case. On 20th September, 2011 the applicants filed application at Exhibit-40 with prayer to withdraw the suit bearing R.C.S. No. 222 of 2010. The applicants/plaintiffs sought permission from the Court to withdraw the suit with further prayer to allow them to file fresh suit on same cause of action. It is the contention of the applicants that, there was' formal defect in the suit presented by them. Therefore, as per provisions of Code of Civil Procedure, particularly Order 23 Rule 3(a)(b) the applicants prayed for leave to withdraw the suit with liberty to file a afresh. It is their case that, east west and south north portion of the suit property was not mentioned in the plaint. The description of the suit property owned by the plaintiffs was inadvertently skipped out. The map of the disputed property was also not supplied. Therefore, plaintiffs prayed that, leave may be granted to the plaintiffs to withdraw the suit with liberty to institute fresh suit.

5. The non-applicant herein, original defendant filed his say to the application Exhibit-40 and prayed for rejection of the said application. It is further case of the applicants that, 5th Joint Civil Judge, Junior Division, 8eed vide order dated 19th April, 2012 was pleased to dismiss the application Exhibit-40. Hence, this Civil Revision Application.

6. The learned Counsel appearing for the revision applicants submits that, the trial Court ought to have appreciated that, defects realized by the plaintiffs were formal and no prejudice would have been caused to the non applicant, had the application Exhibit-40 been allowed. It is further submitted that, the expression ‘formal defect;’ in the Rule must be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merits of the case, whether that defect be fatal to the suit or not. It is fu