Tarlok Singh Chauhan, Judge.

This revision petition is preferred by the defendants against the order, dated 21.2.2005 passed by the learned Civil Judge (Senior Division), Rampur ,Bushahr, District Shimla in case No. 84-1/2003 whereby he allowed the application filed by the plaintiff under Order 23 Rule 1(3) read with section 151 CPC and permitted the plaintiff to withdraw the suit with liberty to file afresh on the same cause of action subject, however, to the law of limitation and on payment of Rs.1000/- as cost to the defendants.

2. The facts in brief may be noticed. The plaintiff filed an application for withdrawal of the suit on the ground that there was formal defect in the suit inasmuch as the plaintiff could not annex the necessary Tatima in respect of the encroached portion of the suit land as the same was not supplied to him by the concerned Patwari and in absence thereof it would not be possible to pass an executable decree. It was further alleged that he had already approached the settlement authorities for correction of wrong revenue entries prepared during the recent settlement and that the same was pending for adjudication.

3. The application was resisted and contested by the defendants mainly on the ground that application was filed at a belated stage and, therefore, was not maintainable. According to them, they raised a specific objection in this behalf at the earliest available opportunity i.e. at the time of filing the written statement on 20.12.2003 and despite the same the plaintiff did not take necessary steps and proceeded with the suit whereby he not only led his evidence in the affirmative but after recording the evidence of the defendants had even led his evidence in rebuttal. The present application was filed only when the case was listed for arguments. This application was filed with the malafide intention as by this time, the plaintiff was well aware that his suit would not succeed and would be dismissed. The further case of the defendants is that plaintiff himself had got conducted the demarcation of the suit land from the Field Kanungo and Naib Tehsildar, Rampur, but he had not filed necessary demarcation report nor had produced the revenue officials as witnesses. Thus according to the plaintiff, the non-production of necessary evidence on behalf of the plaintiff would not constitute a formal defect in the suit. As regards the pendency of application for correction of revenue records, it was claimed that same could not furnish a ground to the plaintiff to withdraw the suit.

4. In so far as the main dispute inter se the parties is concerned, the same is with respect to the boundaries wherein land denoted by khasra No. 152 belongs to the plaintiff and other co-sharers, while the land comprised in khasra No. 147 belongs to the defendants. Both the lands are situated adjacent to each other. The case of the plaintiff is that defendants have encroached upon a portion of his land while raising construction, whereas the defendants have denied this aspect of the case and have tried to show that the construction raised by them is well within their land.

5. During the pendency of the suit, an application for appointment of Local Commissioner to ascertain the correctness of the boundaries was preferred by the plaintiff but the said application came to be dismissed on 8.11.2004.

6. The learned trial court while allowing the application under Order 23 Rule 1(3) CPC has held that delay in filing the application was inconsequential since there was formal defect in filing the suit, which may entail dismissal of the suit. In fact, the judgements relied upon by the defendants i.e. ”2001(3) CCC 676, Punjab & Haryana”, “S.L.C.2003(2)24 H.P.”, “2000(5)SCC 158”, “A.I.R. 2003 Karnataka 164”, “2000(2) CCC 545 Punjab & Haryana”, “AIR 1940 Bombay 121” and “A.I.R.1954 All. 845” though find mention in the order, however, the same were simply brushed aside by observing “I have carefully gone through the aforesaid rulin