ORDER : 1. This is a revision petition against the order dated 22-11-1951 passed by the District Judge, Bhopal, in civil Appeal No.69 of 1951 allowing the plaintiffs-non-applicants' application for withdrawal of the suit owing to a formal defect with permission to bring a fresh suit for the same subject-matter. 2. There was an exchange of small plots of land between the parties in about the year Fasli 1349 (1941-42) and the plaintiffs alleged that writings were exchanged by the parties and possession of the plots was given accordingly. It was said that the defendants had agreed to get the names of the plaintiffs mutated in the Register of Eights. The plaintiffs further said that they had planted trees and put up a fencing to the plot given to them when in about the year 1950 the defendants began to disturb their possession. They, therefore, sued for the following relief : "a decree for the due completion of the deed of exchange of the said land," and any other relief. 3. The defendants contested the claim on the allegation that the Exchange was only temporary with an agreement that the plots were to be given back to their original holders whenever required by either, and accordingly in 1950 on the defendants' demand their land was given back to them. 4. The trial Court accepted the case of the plaintiffs but observed that "on their own showing the defendants, at the time of the exchange, had executed a document and as such what more did the plaintiffs want from the Court. It is their contention that there was a stipulation about the registration of this document. This relief of registration is also not sought from this Court." On such observations the finding on the issue, whether the plaintiffs were entitled to have the document executed by the defendants according to the plaint, was in the negative and the suit was dismissed. 5. This relief of registration is also not sought from this Court." On such observations the finding on the issue, whether the plaintiffs were entitled to have the document executed by the defendants according to the plaint, was in the negative and the suit was dismissed. 5. In their appeal, the plaintiffs filed an application that "the plaint was defective and the relief, which the plaintiffs desired to seek, had not been sought for in the plaint which being a formal defect in the plaint, the appeal is liable to be rejected on the same formal defect of the plaint and they would suffer great damage for no fault of their own and, therefore, they be allowed to withdraw the suit with permission to file a fresh suit with art adequate relief." The learned District Judge in his order observed that "the suit was dismissed for want of properly worded prayer and the defect remains as it is. If it is allowed to amend the plaint, the nature of the suit shall be changed to the extent that the defendants shall have a chance to resist such a prayer. Under the circumstances, the suit is defective and it must fail by reason of formal defect." He thus allowed the application and the defendants' cross-objection was dismissed. They now come up in revision. 6. Their contentions are : (a) that the suit could not be allowed to be withdrawn at that stage and without notice; (b) that the appeal itself was not tenable as the minor plaintiff-appellant was not represented by a next friend; (c) that the suit was liable to be dismissed as the next friend did not act throughout; (d) that the application was not tenable without an inquiry if it was in the minor's interest; (e) that the cross-objection could not be dismissed; (f) that there was no formal defect or other sufficient ground in the plaint due to which the suit was bound to fail; (g) that the suit failed for want of proper cause of action and not for formal defect; (h) that the plaintiffs wanted to bring a fresh suit of a different nature on a different cause of action. 7. 7. Taking up the first contention regarding want of notice of the application, it appears from the record that it is not correct as the defendants-respondents' counsel was present on the date and there was nothing to prevent him from asking for an adjournment to consider the application and to reply to it. This was not done, and it is not correct to say that the defendants respondents had no notice of the application. Reference is made to the decision in Tirupati v. Muttu, 11 Mad. 322, in support of this contention. It would, however, appear that the facts were entirely different. In that case it was behind the back of the non-applicant that the District Judge had passed an order. That is not so in this case. 8. It was then said that there was no suit pending in the Court owing to its having been dismissed by the trial Court and there was also delay in the application. Reference is made to the decision in Kali Ram v. Dharman, AIR 1934 All 214. A perusal of that case clearly shows that the application for permission to withdraw the suit was filed only at the last moment and it was held that the permission should not be granted. This case again is not applicable to the case on hand on the facts as pointed out above. I would refer to the decision in Mt. Afzal Begam v. Akbari Khartum, 37 All 326; Kamayya v. Papayya, 40 Mad 259 (FB); Chhanubhai Hansukh v. Dahya Bhai Govind, 44 Bom 598, Ravaneshwar Prasad Singh v. Baijnath Bam Goenka, AIR 1915 PC 24 at p.27 and lastly Satyanarayan Hiralal v. Chotdal Onkar Prasad, AIR 1949 Nag 10 at p.11 where it is observed that "the powers of an appellate Court to allow the suit to be withdrawn are no longer doubted, more so after the Privy Council allowed a portion of the suit to be withdrawn in Ravaneshicar Prasad Singh v. Baijnath Ram Goenka, ibid." It is thus clear that the contention, that the appellate Court had no power to allow the suit to be withdrawn, has no substance. 9. 9. The contentions (b) to (d) as stated in the earlier paragraph of this order are based merely on minor defects of procedure which could be remedied in the proceedings of the appeal itself if they had been brought to the notice of that Court and as such cannot be considered in the revision. 10. The main ground as contained in contention (f) is that there was no formal defect or other sufficient ground owing to which the suit was bound to fail and it has to be considered at length. A perusal of the plaint as also the judgment of the trial Court clearly indicates that the suit has failed merely because of a defect in the language of the plaint and not on account of any formal defect. The fact, that the plaintiffs did not claim any relief about mutation being obtained by the defendants cannot be said to be a formal defect. Neither the plaintiffs nor the learned District Judge have pointed out what the formal defect in the suit was owing to which it was bound to fail. I have deliberately pointed out above what was said by the plaintiffs in their application and by the learned District Judge in his order. In Pundalik v. Chandrabhan, AIR 1918 Nag 93 it has been held that : "A plaintiff who has misunderstood his case is not entitled on that ground to be allowed to harass the opposite party again. If he wishes to obtain an order under O.23, R.1 he must specify the formal defect or other ground on which his application is based and the Court must show by its order the facts which make the provisions as to withdrawal applicable. A mere general statement that there are formal defects is not sufficient." In Abdul Razack v. Mohammad Hanif, AIR 1947 Mad 89 it is observed that : "Where an application for withdrawal of a suit under O.23, R.1(2) is granted, it is imperative for the Court to give reasons for its order. Failure to state them amounts to a material irregularity in exercising jurisdiction." 11. The question was whether the defect, if any, went to the, root of the ease. Failure to state them amounts to a material irregularity in exercising jurisdiction." 11. The question was whether the defect, if any, went to the, root of the ease. In Muktanath Tewari v. Vidyashanker Dube, AIR 1943 All 67 it is observed that : "The expression 'formal defect' must be given a wide and liberal meaning, and must be deemed to connote every kind of defect which does not affect the merits of the case. Hence the defect that certain necessary parties were not impleaded is not a formal defect within O.23, R.1." Similarly, in my opinion, the fact, that proper relief was not claimed, could not be a formal defect within the purview of O.23, R.1, Civil P.C. It must appear that the suit has failed owing to the statement of facts in para.1 of the plaint. What the trial Court pointed out was that the plaintiffs themselves had stated in the plaint that there was a writing regarding the exchange and as such the plaintiffs could not get the relief for the same purpose over again. It appears, therefore, that the claim was thrown out in the absence of a clear statement of what was done at the time of the exchange. A close perusal of the plaint, in my opinion, clearly shows that it has been mis-read or mis-interpreted by all concerned. "What was stated in para.(1) of the plaint was that at the time of the exchange of the plot there were writings in respect of the agreement of the exchange. This is clear from para.(3) of the plaint where it is said that the cause of action arose on not completing the execution of the deed of exchange. ("Na Takmil Karne Dastawez Tabadla Arazi oaur vahi Vinai Mukbasmat Hai.") What was claimed by the plaintiffs was "a decree for the due completion of the deed of exchange of the said land." The plaint, however, was liable to be mis-read as it has been done because of want of clear statement in para.(1) of the plaint as to what was actually done at the time of the exchange. It is thus clear that the defect could be removed by an amendment of the plaint and as such there was no formal defect on account of which the suit was bound to fail and the application could not be allowed. It is thus clear that the defect could be removed by an amendment of the plaint and as such there was no formal defect on account of which the suit was bound to fail and the application could not be allowed. In Rameshwar Baksh Singh v. Rasul Beg, AIR 1918 Oudh 163 (1) it has been held that: "An application for leave to withdraw a suit with liberty to bring a fresh suit under O.23, R.1 should not be granted if the defect on the basis of which the leave to withdraw is asked for can be cured by amendment of the pleadings." In Satyanarayan Hiralal v. Chotetal Onkar Prasad, AIR 1949 Nag 10, the matter is further clarified. It has been pointed out that : "For purposes of O.23, R.1 distinction must be made between a defect of form and a defect of substance. Where the plaintiff brings a suit for possession of a house site basing his title on an unregistered receipt and his intention in withdrawing the suit is to discard the receipt as a document of title and to sue afresh on an oral sale completed by delivery of possession backed by the collateral evidence in the unregistered receipt, the defect can hardly be called a formal defect. It is a detect of substance to plead one's ease on an unregistered document making it the root of title. Order 23, R.1 has no application to such a case and the plaintiff cannot be allowed to withdraw the suit under that rule." It would thus appear that in the case on hand, there was no formal defect owing to which the suit was bound to fail. If anything, it was a defect of substance in the pleading or want of a full clear statement as to what was actually done at the time of the exchange and what the plaintiffs desired by the relief claimed by them in the suit. This, as has been pointed out, cannot be a formal defect and as such the suit could not be allowed to be withdrawn with liberty to bring a fresh suit. 12. There has been no formal defect or even sufficient ground and the order of the learned District Judge clearly indicates that he acted with material irregularity and a revision against such order was competent. 12. There has been no formal defect or even sufficient ground and the order of the learned District Judge clearly indicates that he acted with material irregularity and a revision against such order was competent. In the Nagpur case cited above it is observed that "there is illegal exercise of jurisdiction where the appellate Court allows withdrawal of a suit under O.23, R.1 on grounds not covered by that rule and the High Court will interfere in revision." 13. In Ramrao Bhagwantrao v. Appanna Samage, AIR 1940 Bom 121 (FB), it is held that: "Where the Court allows withdrawal of a suit on a ground not contemplated by O.23, R.1(2), it must be deemed to have exercised a jurisdiction which did not vest in it under R.1(2) and therefore its order can be corrected in revision under S.115." In the circumstances, it is clear that the learned District Judge in allowing the application for withdrawal of the suit with permission to bring a fresh suit, under O.23, R.1 acted without jurisdiction to do so and as such his order is liable to be revised and set aside. Therefore, the order dated 21-11-1951, in civil Appeal No.69 of 1951 in the Court of the District Judge, is set aside and the appeal is sent back to the appellate Court for disposal according to law. The parties are directed to appear in that Court on 22-9-1952. The non-applicants shall pay the costs of the applicants and shall bear their own in this Court. Counsel's fees would be Rs.25 for each side. Revision allowed.