Order.-The Civil Miscellaneous Petition is for withdrawal of a suit with liberty to file a fresh suit. The matter falls to be considered under Order 23, rule 1 (2) of the Code of Civil Procedure, although the provision of law relied on in the petition is section 151 of the Code.

2. The suit which the petitioner wishes to withdraw was a suit filed by him against the Devaswom of a temple governed by the Madras (Transferred Territory) Incorporated and Unincorporated Devaswoms Act, 1959 (Madras Act XXX of 1959). This suit was not preceded by service of a suit notice on the Devaswom as stipulated in section 34 of the Act. The Devaswom pleaded this section in defence, and said that the suit against them was bad for want of notice. The plaintiff apparently, wishes now to cure this defect by serving a proper notice on the Devaswom after withdrawing the present suit and then file a fresh suit after notice. The petitioner’s learned counsel urges before me that absence of proper notice under section 34 of the Act has to be regarded as a mere formal defect. On this basis, he urges that I should grant leave to him for withdrawal of this suit with liberty to file a fresh suit against the Devasom.

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