1. This is a defendants revi­sion petition directed against an order of the learned Subordinate Judge, Kangra permitting the plaintiff to with­draw his suit with liberty to file a fresh suit.

2. The plaintiff filed a suit for decla­ration that he was the owner in posses­sion of the disputed land. During the pendency of the suit he discovered that the land had been acquired by the State Government. Accordingly, he applied un­der O. 23. R. 1 (2) of the Code of Civil Procedure for permission to withdraw the suit with liberty to file a fresh suit. The basis of the application was that as the land had been acquired by the State Government the suit must fail by reason of a formal defect inasmuch as the State was not a party to the suit. The learned Subordinate Judge allowed the applica­tion and by his order dated October 3, 1974 dismissed the plaintiffs suit grant­ing permission to file a fresh suit.

3. In this revision petition, learned counsel for the defendant-petitioner urges that the conditions of O. 23 R. 1 (2) of the Code are not satisfied. It is urged that having regard to the pleadings in the case the State Government was a necessary party, and therefore it cannot be said tha