( 1 ) THE petitioner herein is the original defendant and the opponent is original plaintiff. The plaintiff had filed a suit being Regular Civil Suit No. 78 of 1966 which was pending for hearing and final disposal in the Court of the learned Third Joint Civil Judge (Junior Division) at Rajkot. The averment in the plaint was that the plaintiff had entered into an agreement to purchase 12 plots of non agricultural land of Survey No. 443 which plots were situate on Kalawad Road in Rajkot and the defendant was the owner and was in possession of the said land. It was contended by the plaintiff that the defendant had entered into an agreement on March 27 1964 with the plaintiff to sell 12 plots of land aggregating in all to 5280 sq. yd. out of Survey No. 443 to the plaintiff and the plaintiff had paid a sum of Rs. 4 0 as earnest money towards that agreement to purchase. It was agreed between the parties that the plaintiff should get the conveyance of the said land executed in his favour by paying the balance of the consideration within sixty days from March 27 1964 The price that was agreed upon between the parties was Rs. 6/per sq. yd. The conveyance was not obtained by the plaintiff within the stipulated period and according to the defendant he called upon the plaintiff to pay the balance of the consideration and to get the conveyance executed in his favour. Still the plaintiff did not pay any heed to it. Ultimately it appears that the defendant intimated to the plaintiff that the plaintiff had committed a breach of the agreement and that the amount of earnest moneys had been forfeited by the defendant. Thereafter the plaintiff filed Regular Civil Suit No. 78 of 1966 and in that suit he prayed for a declaration that the agreement dated March 27 1964 was not cancelled and the amendment in the map of June 3 1964 was still subsisting and he also prayed for a permanent injunction restraining the defendant from transferring or alienating the land till the final disposal of the suit. In that suit the plaintiff did not ask for specific performance of the agreement dated March 27 1964 and he also did not allege that the defendant had committed any breach of the contract nor had he prayed for any damages in respect of the said alleged breach of the contract on the part of the defendant. One of the contentions raised by the defendant in his written statement was that the suit was not maintainable in the form in which it was framed and one of the issues was relating to the maintainability of the suit. After the suit reached hearing and evidence was recorded the plaintiff summoned a clerk from the office of the Collector Rajkot and through him certain documents and maps were got produced in the suit and they were exhibited by the learned trial Judge. On April 6 1967 the plaintiff submitted an application for permission to withdraw the suit with permission to file a fresh suit in respect of the same subject matter and the contention which was urged in support of this application was that the plaintiffs suit as framed was suffering from a formal defect in as much as he had not asked for the relief of specific performance. The argument was that it was only when the documents and maps were produced from the office of the Collector that the plaintiff came to know that the Collector had sanctioned the plans whereas at the time when he filed the suit he had proceeded on the footing that the Collector had not sanctioned the plans. This application for withdrawal with permission to file fresh suit in respect of the same subject matter was resisted by the defendant. The objection of the defendant were over ruled by the learned Third Joint Civil Judge (Junior Division) Rajkot and he granted the permission to the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action and the plaintiff was directed to pay defendants cost of the suit. It is against this order of the learned trial Judge that this Civil