MAHESH CHANDRA, J. (Oral)

( 1 ) THIS revision petition is directed against the order dated 29th August, 1988 of Shri M. K. Gupta, Sub Judge, 1st Class, Delhi whereby application filed by the plaintiff that "the plaintiff be allowed to withdraw the suit in the interest of justice with permission to file fresh suit for fair trial of the matter under controversy" was dismissed and it was further directed that the suit be also dismissed as withdrawn. Feeling aggrieved this revision petition has been filed.

( 2 ) THE facts giving rise to this petition are that plaintiff Smt. Raj Bala alleging herself to be the tenant of predecessor-in-interest of the respondent had filed a suit for injunction to restrain them from in any manner interferring with her possession or dispossessing her except in due course of law. The plaint in the said suit was later amended by the petitioner-plaintiff under Order 6 rule 17 Civil Procedure Code and the application for withdrawal was filed thereafter.

( 3 ) THE impugned order had been passed as the learned trial court had come to the conclusion that the plaintiff-petitioner had failed to bring out any formal defect on account of which the suit was likely to fail within the meaning of Order 23 rule 11 (3) Civil Procedure Code and consequently there were no grounds to grant permission to the plaintiff to file a suit afresh on the same cause of action and in consequence the application was dismissed and along therewith suit was also dismissed. Learned counsel for the petitioner-plaintiff has made a limited submissions that the plaintiff had not filed the application for withdrawal of the suit simplicitor and rather his application was "to withdraw the suit in the interest of justice with permission to file afresh suit" and as such his application was one under Order 23 rule 1 (3) Civil Procedure Code rather under Order 23 rule 1 (1) Civil Procedure Code and consequently if the court did not want to allow the application it could not dismiss the suit also.

( 4 ) IN this behalf my attention has been drawn to provision of order 23 rule I Civil Procedure Code which lay down as under :

"order 23 rule 1.-Withdrawal of suit or abandonment of part of claim (1) at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also. if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the court is satisfied,- (a) that a suit must fail by reason of some formal defect. or (b) that here are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. it may, on such terms as it thinks fit. grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3 ). he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub rule (1) or to withdraw, under sub rule (3) any suit or part of a claim, without the consent of the other plaintiffs. "

( 5 ) I have seen the copy of the application for withdrawal of the suit filed on record. No provision of law has been mentioned therein. However, from the perusal of the said application it can be c

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