ORDER

1. Petitioners/plaintiffs have filed this civil revision against the order dated 13.3.2023 passed by 2nd Civil Judge, Junior Division, Sarangpur, district Rajgarh in civil suit No.67A/2014 whereby the application filed by the petitioners under Order 23 rule 1 CPC has been dismissed.

2. The brief facts of the case are that petitioner/plaintiff filed a suit for declaration and permanent injunction against the respondent/State with regard to the land bearing survey No.269/1/1 Rakba 0.140 hectares situated at Kasba Pachore, Tehsil Pachore, district Rajgarh (hereinafter referred to as 'the suit property'). The respondent No.1/State filed a written statement denying all the averments made in the plaint and alleged that the petitioners are not the owners of the suit property and in the year 1948 the suit property was not allotted to the father of the petitioner for establishment of ginning factory.

3. The trial court framed issues, recorded evidence and dismissed the suit filed by the petitioners. The petitioners/plaintiffs being aggrieved by the said judgment passed by the trial court preferred a first appeal before the first appellate Court. During the pendency of the first appeal, Bhagwatibai and Lalitabai, daughters of late Mangilal filed an application under Order 1rule 10 CPC stating that they are the daughters of Mangilal, therefore, they are also having share in the suit property and the petitioner without informing them has filed a suit which was not maintainable due to non joinder of necessary parties. The first appellate court has allowed the said application and partly allowed the appeal filed by the plaintiff and set aside the issues, judgment and decree passed by the trial Court and remanded the matter back to the trial court with a direction to join necessary parties in the suit and after giving them opportunity of hearing decide the suit on merit in accordance with law.

4. During the pendency of the suit the petitioner filed an application under Order 23 rule 1 CPC for withdrawal of the suit with liberty to file a fresh suit stating that appellate court has remanded the matter and directed to add the necessary parties in the present case, therefore, the petitioner has to amend the suit and because of the said amendment the nature of the suit will be changed and certain discrepancy will also arise. However, on 13.3.2023 the trial court has rejected the application filed by the petitioner under Order 23 rule 1 CPC holding that non-joinder or mis-joinder of parties is not a formal defect. Being aggrieved by the said order, the petitioners/plaintiffs have filed this civil revision before this Court.

5. Learned counsel for the petitioner submits that the order of the trial Court is arbitrary and without jurisdiction. He further submits that the impugned order passed by the trial court is contrary to the record. The trial court has erred in holding that as per the order of the appellate Court newly added party has already been added and there appears no reason for the apprehension that because of the amendment the nature of the suit will change without. The said finding is without considering the content of the application filed by the newly added party under order I rule 10 CPC, so prayed for setting aside the impugned order.

6. On the other hand, learned counsel for the respondent No.1 has supported the impugned order and prayed for rejecting this revision petition.

7. In support of the contentions, learned counsel for the petitioner has placed reliance in para-3 & 5 of the decision in the case of Kunwar Bai wd/o Ram Prasad Keer and others v. Gangram s/o Baliram Keer and another - 2013 (2) MPLJ 173 which are reproduced below:

3. By placing heavy reliance upon the single Bench decision of this Court Mst. Chhabili Dullaiya vs. Lallu in Second Appeal No. 218/1961 decided on 8-12-1964 which has been digested in 1965 MPLJ Note 99 it has been put forth by learned counsel for the applicants that a suit can be permitted to be w