The vague description of the suit property did not constitute a formal defect, and the appellate court erred in allowing the Plaintiff to withdraw the suit.

JUDGMENT :

Misra, J. - Plaintiff filed T.S. No. 133 of 1958 in the court of the Munsif, Bargarh for declaration of her title over the plaint 'Ka' schedule lands, for recovery of possession on eviction of the Defendants and for permanent injunction. Portions of plot No. 13;) 6 were alleged to have been trespassed upon. A map or boundary of the trespassed area was not annexed to the plaint. The area of the Defendants' land was mentioned as 106-' x 70'. Defendants were alleged to have trespassed upon l01/2' x' to the west, 70' xl' to the north and 70' x I' to the south of the land belonging to the Defendants. Defendants in their written statement filed on 1st July, 1959 took a specific plea in para 9 that the description of the suit land as given in the 'Ka',-.'the schedule of the plaint was a vague and indefinite and the suit as framed is not maintainable. They filed a map along with the written statement showing the area in their possession. Their case was that Chiranjilal, the grand-father of Defendant No. 1 acquired about AO.30 decimals of land out of plot. No. 1336 as shown in red colour in the map about 30 years back. Again in 1949 Haranarayan and Ramkumar, uncles of Defendant No. 1 while living joint with the Defendants acquired AO.15 decimals of land out of that very plot as shown in blue colour in map under a registered sale deed dated 4-4-1949. They also asserted at Defendant No. 1 acquired AO.116 decimals of land from polder No. 1338 as shown in yellow colour in the map (para 11 of, .that written statement). The Plaintiff admits the title and possession of the Defendants in AO.15 decimals of land covered by the registered "sale deed dated 4-4-1949. The Defendants claim title and possession to an Additional area of AO. 30 decimals which was clearly described in the map attached to the written statement. Despite the objection in the written statement and filing of a map by the Defendants, Plaintiff did not say that the map by the Defendants was not accurate and did not correctly specify the trespassed area. Parties entered into evidence in due course which was closed on 12-11-1961. On 30-12-1961, Plaintiff filed an application for appointment of a survey knowing Civil Court Commissioner to demarcate the trespassed area in a map. This application was dismissed on the same day. The judgment in the suit was delivered on 23-12-1961 and Plaintiff's suit was dismissed. Against the decree the Plaintiff filed an appeal on 6-2-1962. For more than 11/2 years the appeal lingered on and was fixed to various dates for bearing. Ultimately on 5-11-1963, an application wag filed in T.A. 15/15 of 62/63 for withdrawal of the suit under Order 23, Rule 1, CPC Code. The grounds mentioned in the application were not specified as to why withdrawal was Bought for. Greater emphasis was made on the objection taken by the Defendants in their written statement that the allegations in the plaint were vague and indefinite and that the suit was to fail due non-joinder of parties. The appeal was not heard on merits. The learned Judge came to the conclusion that non. joinder of parties was not a formal defect. He however held that the vague description of the suit properties constituted a formal defect and that the suit was bound to fail. He accordingly permitted withdrawal of the suit with liberty to file a fresh suit on 17-12-1963. The Civil Revision has been filed against the order allowing withdrawal of the suit.

2. Mr. Misra contends that the non-supply of a map is not a formal defect and that at any rate the application withdrawal having been filed after disposal of the suit, the Court should not have granted permission for withdrawal with liberty to file a fresh suit. Mr. Ramdas on the other hand contends that the defect in this case comes within the purview of "other sufficient grounds" under Order 23, Rule 1(2)(h) and that once the discretion has been exercised by the Court in granting permission for withdrawal, this Court should not interfere in