A suit for injunction and declaration simpliciter cannot be maintained when the defendants are in possession of the premises in dispute and the necessary relief of possession is not claimed. Such a defect is a formal defect which can be remedied by way of amendment or by withdrawing the suit with permission to file a fresh suit on the same cause of action.

M.S.Liberhan, J.

1. Briefly the fact relevant to determine the question involved in this revision petition are that the plaintiff-respondents filed a suit for mandatory injunction on the basis of title in the year 1980. Apart from various other pleas, the defendants contended that the suit for injunction and declaration simpliciter was not maintainable as they are in possession of the premises in dispute. During the pendency of the trial, the plaint was amended. However, the relief claimed was never changed. The defendants still have to lead their evidence. The trial is at the stage of evidence.

2. The respondents sought the withdrawal of the suit with permission to file a fresh suit on the same cause of action as the suit suffered from a formal defect. The application was allowed inter alia holding that the plaintiffs would not get the desired relief of possession in the present suit though it was observed by the learned Sub-Judge that there was no defect the form of the suit.

3. The learned counsel for the petitioners contends that when a party to the lis can seek any relief by way of amendment, he cannot be allowed to withdraw the suit with permission to file a fresh suit.

4. The learned counsel for the petitioner relied on Ashok Kumar v. Smt. Kala Devi and others, 1984 PLJ 308; Dhandar Singh and others v. Nirajan Kaur and others, 1986 PLJ 339; Piara Ram and another v. Ganesh Dass and others, AIR 1967 Punjab 237; K. Chinna Vatra Thevar v. S. Vaira Thevar, AIR 1983 Madras 160; Amrik Singh v. Pritam Singh and others, 1985(2) Punjab Law Reporter 44 and Raghbir Kaur v. Gurmej Singh, 1985(1) Punjab Law Reporter 266.

5. The learned counsel for the respondents reutes the submissions made and contends that the proper relief was not claimed in the suit and the suit is likely to be dismissed as not maintainable. It is a formal defect and the trial Court has exercised its discretion in granting the permission. There is no illegality or irregularity in the exercise of jurisdiction nor the petitioner suffer materially in any respect inasmuch as the suit is still at the trial stage and defendants have to lead the evidence. It is not a fit case for interference in exercise of revisional jurisdiction. In view of the undisputed facts that the defendant-petitioners are in possession of the premises in dispute, the suit for declaration and injunction simpliciter cannot be maintained. The learned counsel relies on Brajamohan Sabato v. Sarojini Panigrahi and another, AIR 1975 Orissa 39 and Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 Supreme Court 1267.

6. In so far as Ashok Kumars case (supra) is concerned, it was observed as under :-

"Even if it may be said for the sake of argument that proper relief was not claimed, it could be done by way of amendment and there was absolutely no reason to hold that suit was likely to fail on some technical ground."

Admittedly in this case, this is not the position. It is not disputed at the Bar that the suit is liable to be dismissed solely on the ground that relief of possession was not sought. The provisions of Order 6 Rule 17 of the Code of Civil Procedure have to be read as not to make Order 23 rule 1 redundant. If the sweeping contention of the petitioners to the effect that where a suit can be amended, the permission to withdraw the suit cannot be granted, is accepted, it would tender Order 23 Rule 1 of the Code of Civil Procedure obsolete. The Legislature has thoughtfully provided in Order 23 Rule 1(3) of the Civil Procedure Code that civil Court has jurisdiction to grant permission to withdraw the suit with liberty to file a fresh suit on the same cause of action where it is satisfied that the formal defect pointed out by the parties may result in dismissal of the suit. The trial Court can also grant permission to withdraw the suit for other sufficient grounds where justice and equity demand.

7 So far as Dhandar Singhs case (supra) is concerned, it is neith