Sanjay Yadav, J.

1. With consent of learned counsel for the parties, the matter is finally heard.

2. Respondent filed a suit for recovery of possession of land bearing Araji No.62 Area 0.42 Acre Mouja Futaodhi Tahsil Raghraj Nagar District Satna against one Thakurdeen Singh, son of Devideen Singh Rajput. Later on, the plaintiff discovered that the sole defendant had already expired before filing of suit.

3. An application under Order 22, Rule 4 of the Code of Civil Procedure, 1908 was filed for substitution of his legal heirs. The trial Court exercising its power under Order 23, Rule 1 (3) CPC, permitted the plaintiff to withdraw the suit as it was of the opinion that the plaint was inhibited with "formal defect".

4. Sub-rule (3) of Rule 1 Order 23 CPC mandates -

"Rule 1. Withdrawal of suit or abandonment of part of claim.-...

(3) Where the court is satisfied, -

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

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the cl