V.K. Gupta, C.J.

1. Vide the impugned order dated 19th July, 2006, the learned Civil Judge (Junior Division) Court No. 2, Kasauli, District Solan has rejected the Application of the petitioners filed under Order 23 Rule 1(3) of the Code of Civil Procedure for permission to withdraw the pending suit with liberty to file a fresh suit on the same cause of action. Sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure reads thus:

(3) Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there 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.

2. By now it is a settled proposition of law that permission to withdraw the suit with liberty to file a fresh suit can be granted to a plaintiff only if one of the two situations or contingencies exist, or are made out, viz. that the suit may not fail by reason of some formal d