ORDER:- This application under Section 115 of the Code of Civil Procedure by the defendant is directed against the order dated 14-9-1970 passed by the Sadar Munsiff, Gauhati in Title Suit No.41 of 1961, allowing the plaintiff to withdraw the suit. The material facts, necessary for the purpose of disposal of this application, briefly are that the plaintiffs brought the suit against the defendant for eviction and recovery of khas possession of the suit land. During the pendency of the suit, plaintiff No.1 died and some of his heirs were not brought on record in time. When the surviving plaintiffs made an application for substitution of the heirs of the deceased plaintiff, the defendant filed an objection alleging that the suit had abated. The plaintiffs then made a prayer before the Court for permission to withdraw the suit with permission to file a fresh suit and the learned Munsiff allowed the plaintiffs to withdraw the suit on payment of Rs.20/- as costs to the defendant with the permission to bring a fresh suit holding that the defect for which the plaintiffs sought to withdraw the suit was "a formal defect".

2. The defendant-petitioner challenges the order of the learned