1. In this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 30.4.2014 passed by the Civil Judge, Class II, Seondha District Datia (M.P.) in Civil Suit No.61-A/2012 whereby the application under Order 23 rule 1 CPC has been dismissed seeking leave of this Court to withdraw the suit with liberty to file afresh.

2. The facts in nutshell are that the petitioner-plaintiffs filed a suit for declaration and permanent injunction. Since there was defect of non-joinder of necessary party and due to lack of certain pleadings, the petitioner moved an application under Order 23 rule 1 CPC. The learned trial Court dismissed the application on the ground that defect of non-joinder of party is not a formal defect and lack of pleading cannot be a ground for granting the permission to withdraw the suit with the liberty to file fresh suit.

3. The learned counsel for the petitioner submitted that the trial Court without considering the relevant provisions contained in Order 23 rule 1 CPC has rejected the application which is dehors the provisions of law.

4. Order XXIII rule 1 CPC makes provisions for withdrawal of the suit. Sub-rule (3) of rule 1