R.L. Khurana, J.—The petitioner is the defendant in Civil Suit No. 126/1 of 1994. He is aggrieved by the order dated 13.6.2000 of the learned District Judge, Kinnaur at Rampur, whereby the respondents/plaintiffs were permitted under Order 23 Rule 1(3), Code of Civil Procedure, to withdraw their suit with liberty to bring a fresh suit on the same cause of action.

2. The facts of the case leading to the present petition, briefly, may be thus stated. The plaintiffs are owners of the land comprising of Khata/ Khatauni No. 11/42 and Khasra No. 386 in Kasba Bazar Rampur Bushahr while the defendant is the owner and in possession of the adjoining land comprising of khasra No. 384. Alleging encroachment by the defendant over an area measuring 2 mtrs. in width and 11.40 mtrs. in length out of their land comprising of khasra No. 386, the plaintiffs filed a suit, being Civil Suit No. 126/1 of 1994 before the learned Sub Judge 1st Class, Rampur, on 25.8.1994 for perpetual and mandatory injunction to the effect that the defendant be restrained from raising any further construction over the encroached area and for directing him to pull down the construction raised by them over such area and to restore the same to the plaintiffs.

3. The defendant while resisting the suit, denied the encroachment on any part of the land belonging to the plaintiffs and pleaded that the construction has been raised by him in his own land.

4. The learned trial Court vide judgment and decree dated 28.11.1997 dismissed the suit of the plaintiffs. The learned trial Court come to the conclusion that the plaintiffs had failed to prove that the defendant had encroached upon any land belonging to them.

5. The plaintiff, aggrieved by the judgment and decree of the learned trial Court dismissing their suit, went up in appeal before the learned District Judge. In such appeal, an application came to be made by the plaintiffs under Order 23 Rule 1(3), Code of Civil Procedure, for leave to withdraw the suit with liberty to bring a fresh suit on the same cause of action. It was averred in paras 2 to 4 of such application as under:— "2. That during the argument it was pointed out that the appellants/ plaintiffs has not mentioned the area owned and possessed by them in the plaint though the area encroached by the defendant/ respondent has been mentioned in the plaint. The site plan and map approved by M.C. Rampur is on record.

3. That to ascertain the built up portion and to specify the area encroached upon by the defendant can only be ascertained if the land owned and possessed by the appellants/plaintiffs is find mentioned in the plaint. Due to this formal defect and other infirmities in the plaint, the suit/appeal is likely to fail and prejudice shall be caused to the applicants/appellants due to this technical defect in the plaint.

4. That the applicants/defendants want to file fresh suit on the same cause of action on the same subject matter and no prejudice shall be caused to the respondent rather it shall avoid the multiplicity of litigation between the parties."

6. The application was resisted by the defendant/respondent. The learned District Judge vide the impugned order allowed the application thereby permitted the plaintiffs to withdraw the suit under Order 23, Rule 1(3), Code of Civil Procedure, with liberty to bring a fresh suit on the same cause of action after obtaining proper demarcation of the land in dispute subject to payment of costs of Rs. 1,000. The learned District Judge observed as under:— ".....I find that the parties had been at issue with regard to determination of their boundary. The learned Sub Judge had rejected the suit on the ground that P.W. 3, Mohan Singh, Field Kanungo had not carried out demarcation as per the rules and instructions on the subject. That the respondent had been at fault was writ large. The respondent had not produced any evidence so as to controvert the evidence of P.W. 3, Mohan Singh, Field Kanungo. The respondent had also n