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. Petitioner who is defendant in the suit appeared and denied the allegations made in the plaint. It was case of the defendant that one Anil Kumar Shivhare brother of the plaintiff is a tenant of the disputed property. Defendant No.1 Shri Vinod Kumar Gupta has testified in Civil Suit No. 236A101 (Vinod Kumar Gupta v. Gote Ram) to the effect had admitted that his brother Anil Kumar Shivhare is a tenant of the suit property and petitioner/defendant is the landlord. It was stated that thereafter when the petitioner filed suit for eviction against Anil Kumar Shivhare, the present suit which has been filed malafidely so that the suit filed against Anil Kumar Shivhare is frustrated. On the basis of submission made in the written statement, various issues were framed, evidence of plaintiff were recorded and after plaintiff closed his evidence, petitioner submitted his evidence by way of Affidavit under Order 18 Rule 4 CPC was submitted, the application Annexure P-6 under Order 23 Rule 1 (3) read with section 151 CPC was filed and in the said application Annexure P-6 it was stated that the suit is filed only by plaintiff No.1 but his other sons are also necessary parties, because of none-joinder of property party, the suit may fail, therefore, contending that there is some formal defect in the suit, application is filed for withdrawal of the suit with liberty of filing a fresh suit. Accordingly, permission is granted to the plaintiffs to withdraw the suit with liberty to file a fresh suit. Inter alia contending that non-joinder of party is not a formal defect as contemplated under Sub-rule 3 of Rule 1 of Order 23 and on this ground suit cannot be permitted to be withdrawn, petitioner seeks interference in the matter.

4. In support of aforesaid contentions, Shri V,K. Bhardwaj invites my attention to the principles laid down by the Orissa High Court in the case of Khatuna and another v. Ramsewak Kashinath and another [AIR 1986 Orissa 1] to emphasise that non-joinder of necessary party in a suit is not a formal defect, the defect strikes at the root of the suit in any stage and the provisions of Order 23 Rule 1 (3) is not attracted. He placed further reliance in this regard to another judgment of Himachal Pradesh High Court in the case of Smt. Savitri Devi v. Himlal [AIR 1977 HP 91] wherein also similar principles are laid down. That apart, inviting my attention to judgment of this in the case of Uma Devi and another v. Nagarpalika Begamgunj and others [1999 11 MPJR 487], Shri Bhardwaj argued that permission to withdraw the suit cannot be granted as a matter of right, it can be granted only if sufficient and good ground for withdrawal of suit is made out. Accordingly, he submits that in the facts and circumstances of the case as the suit is permitted to be withdrawn on th