Order:- The defendants in a suit which was permitted to be withdrawn at the appellate stage with liberty to file a fresh suit are the petitioners before me. The suit was filed by the plaintiff for a declaration and injunction on the averment inter alia, that in an earlier partition suit wherein there was a compromise decree Exhibit A-2 the suit property fell to the share of the plaintiff, and that while the plaintiff had been in separated and exclusive possession of the same, the defendants without any right threatened to cut and carry away the crops. According to the defendants amongst other pleas it was contended that the suit property was not divided. The trial Court came to the conclusion that the plaintiff had failed to prove his exclusive right to the property. In the plaint the suit properties are given survey numbers. In correlating it with the compromise decree the plaintiff referred to an item of the extent of 3 acres and 37 cents shown as Sawdabavi Kindamadi east of the Sowdabavi well. The trial Court came to the conclusion that this item on its view of the evidence was in Kondapalayam village whereas according to the plaintiff the suit poperty was in Karikal Village. On appeal by the plaintiff, on an application evidently made to the Court by the plaintiff the learned Subordinate Judge has taken the view that the suit has failed by reason of the discrepancy which is a defect formal in nature. I am unable to understand how the learned Subordinate Judge has considered the failure of the suit as on a technical or formal ground. It cannot be ignored that the suit is for injunction by a party allegedly in exclusive possession. The plaintiff himself in such a case would have no difficulty in setting out the property correctly and describing it accurately in the plaint. One may therefore presume that the plaintiff has attempted to give all such particulars as he could give with reference to the property which according to him was in his exclusive possession and was attempted to be trespassed upon. The difficulty he found was in correlating the plaint item with the partition decree under which he claimed exclusive title to the same. The difficulty he found was in correlating the plaint item with the partition decree under which he claimed exclusive title to the same. If by reason of any inaccurate description in the plaint of the property, correlation became difficult the proper thing would be to apply to the Court to amend the schedule to the plaint so to describe it property according to the realities. If in spite of rectification of the description the plaintiff cannot correlate the suit property with any item which has been allotted to him exclusively, in the compromise decree, then the plaintiff fails on merits. If the description in the plaint is accurate and the difficulty is the description of the same property in the compromise decree then it is a matter for evidence. According to the trial Court, the plaintiff has failed to correlate the item in the suit with the items which had been exclusively allotted to him in the partition. One cannot say that the suit in the circumstances has failed in the trial Court by reason of any formal defect. The appellate Court should be slow and cautious to exercise the powers under Order 23, rule 1 and permit a defeated plaintiff to withdraw his suit with liberty to file a fresh suit and reagitate the matter over once again. When the defect, if any, could be cured by an amendment, the Court should not ordinarily permit the withdrawal of a suit with liberty to institute a fresh suit. Learned Counsel for the petitioner referred me to the decision of this Court in Venkata v. Nimmakayala1, where Panchapakesa Ayyar, J., observes: "Any Court allowing a party to withdraw from a suit with liberty to file a fresh suit at such a late stage as this, alter arguments also have been addressed in appeal, is bound to give satisfactory reasons falling within Order 23, rule 1, Civil Procedure Code. The lower appellate Court has undoubtedly failed to do so. It is not clear what it meant by saying that the suit was defective for want of a proper sketch showing the disputed rastha and the situation of the various lands which appeared in the evidence. There were two sketches before it, namely, the plan filed by the plaintiff along with his plaint and the plan filed by the defendants Exhibit D-1. There were two sketches before it, namely, the plan filed by the plaintiff along with his plaint and the plan filed by the defendants Exhibit D-1. If it wanted a more detailed and accurate sketch than either of these, it was within its powers to direct the parties to get a commissioner appointed to draw a correct sketch with full details, or to suggest a local inspection by itself to clear up all the doubts it had. " The observations therein are apposite in the present context. The misdescription in this case, assuming there is a misdescription, cannot be said to be a formal defect necessitating the withdrawal of the suit after the trial Court has given a decision on the matter. The lower appellate Court has failed to bear in mind the principles that should govern the granting of permission for withdrawal of suit under order 23, rule 1, Civil Procedure Code, particularly at the appellate stage giving liberty to the plaintiff to institute a fresh suit on the same cause of action. In the result the order of the lower Court granting permission to the plaintiff to withdraw the appeal and the suit is set aside. The appellate Court will restore the appeal to its file and dispose of the same on the merits. Of course, it will be open to the plaintiff if he finds the need for it, to apply for amendment of the plaint, and the Court will consider the application on its merits. If the amendment necessitates and the interests of justice require further evidence in the matter, the Court may, call for a finding. This will be more than sufficient to meet the ends of justice if any required in the case. In the result the revision is accordingly allowed. No costs. K.G.S. ----- Revision allowed; Appeal directed to be heard.