Defendants 2 to 5 are the sons of the first defendant and the plaintiffs are the sons of the first defendant’s deceased brother. The plaintiffs claimed in their plaint that a certain house belonged to their father and that a room in that house had with his permission been occupied by the defendants. Quarrels having arisen between the plaintiffs and the defendants, this suit was filed for the recovery of possession of that room and for an injunction to restrain the defendants from interfering with their possession of other portions of the house. The defendants claimed that they had an equal share in the house. After perusing the written statements the plaintiffs thought it desirable that a fresh suit should be instituted in which wider questions could be raised; and so made an application to the Court under Order 23, rule 1, Civil Procedure Code, to withdraw the suit, praying for liberty to institute a fresh suit in respect of the same subject-matter. That application was allowed.

Order 23, rule 1 permits the Court to grant liberty to institute a fresh suit with regard to the same subject-matter provided:

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