1. Challenging the order Annexure P-l dated 13.8.2005 passed by 1st Additional District Judge, Dabra, District Gwalior in Civil Suit No. 10N04 allowing a application under Order 23 Rule 1 Sub-rule 3 (b) CPC permitting the plaintiffs/respondents to withdraw the suit and granting liberty to file a fresh suit, petitioner has filed this petition.

2. According to Shri V,K. Bhardwaj, learned counsel representing the petitioner, the legal question involved in this petition is as to whether the non-joinder of parties in a suit can be a formal defect entitling the plaintiff to withdraw the suit and seeking liberty to file a fresh suit under Order 23 Rule 1 Sub-rule 3 CPC?

3. Facts in brief necessary for disposal of this petition are that plaintiffs/respondents filed the suit in question for declaration and permanent injunction against the defendant/the present petitioner with regard to certain open land as detailed in the suit. The injunction and declaration was sought on the ground of adverse possession and prayer made was that respondents be restrained from interfering with the plaintiff's possession and on the basis of adverse possession to be declared owner of the suit land. Petition