JUDGMENT : Misra, J. - Plaintiff filed T.S. No. 133 of 1958 in the court of the Munsif, Bargarh for declaration of her title over the plaint 'Ka' schedule lands, for recovery of possession on eviction of the Defendants and for permanent injunction. Portions of plot No. 13;) 6 were alleged to have been trespassed upon. A map or boundary of the trespassed area was not annexed to the plaint. The area of the Defendants' land was mentioned as 106-' x 70'. Defendants were alleged to have trespassed upon l01/2' x' to the west, 70' xl' to the north and 70' x I' to the south of the land belonging to the Defendants. Defendants in their written statement filed on 1st July, 1959 took a specific plea in para 9 that the description of the suit land as given in the 'Ka',-.'the schedule of the plaint was a vague and indefinite and the suit as framed is not maintainable. They filed a map along with the written statement showing the area in their possession. Their case was that Chiranjilal, the grand-father of Defendant No. 1 acquired about AO.30 decimals of land out of plot. No. 1336 as shown in red colour in the map about 30 years back. Again in 1949 Haranarayan and Ramkumar, uncles of Defendant No. 1 while living joint with the Defendants acquired AO.15 decimals of land out of that very plot as shown in blue colour in map under a registered sale deed dated 4-4-1949. They also asserted at Defendant No. 1 acquired AO.116 decimals of land from polder No. 1338 as shown in yellow colour in the map (para 11 of, .that written statement). The Plaintiff admits the title and possession of the Defendants in AO.15 decimals of land covered by the registered "sale deed dated 4-4-1949. The Defendants claim title and possession to an Additional area of AO. 30 decimals which was clearly described in the map attached to the written statement. Despite the objection in the written statement and filing of a map by the Defendants, Plaintiff did not say that the map by the Defendants was not accurate and did not correctly specify the trespassed area. Parties entered into evidence in due course which was closed on 12-11-1961. On 30-12-1961, Plaintiff filed an application for appointment of a survey knowing Civil Court Commissioner to demarcate the trespassed area in a map. Parties entered into evidence in due course which was closed on 12-11-1961. On 30-12-1961, Plaintiff filed an application for appointment of a survey knowing Civil Court Commissioner to demarcate the trespassed area in a map. This application was dismissed on the same day. The judgment in the suit was delivered on 23-12-1961 and Plaintiff's suit was dismissed. Against the decree the Plaintiff filed an appeal on 6-2-1962. For more than 11/2 years the appeal lingered on and was fixed to various dates for bearing. Ultimately on 5-11-1963, an application wag filed in T.A. 15/15 of 62/63 for withdrawal of the suit under Order 23, Rule 1, CPC Code. The grounds mentioned in the application were not specified as to why withdrawal was Bought for. Greater emphasis was made on the objection taken by the Defendants in their written statement that the allegations in the plaint were vague and indefinite and that the suit was to fail due non-joinder of parties. The appeal was not heard on merits. The learned Judge came to the conclusion that non. joinder of parties was not a formal defect. He however held that the vague description of the suit properties constituted a formal defect and that the suit was bound to fail. He accordingly permitted withdrawal of the suit with liberty to file a fresh suit on 17-12-1963. The Civil Revision has been filed against the order allowing withdrawal of the suit. 2. Mr. Misra contends that the non-supply of a map is not a formal defect and that at any rate the application withdrawal having been filed after disposal of the suit, the Court should not have granted permission for withdrawal with liberty to file a fresh suit. Mr. Ramdas on the other hand contends that the defect in this case comes within the purview of "other sufficient grounds" under Order 23, Rule 1(2)(h) and that once the discretion has been exercised by the Court in granting permission for withdrawal, this Court should not interfere in exercise of its powers u/s 115, Code of Civil Procedure. 3. On the aforesaid arguments, the following question arise for determination: 4(i) Does the vague description of the suit property constitute a formal defect? (ii) Does it come within the purview of "other sufficient grounds"? 3. On the aforesaid arguments, the following question arise for determination: 4(i) Does the vague description of the suit property constitute a formal defect? (ii) Does it come within the purview of "other sufficient grounds"? (iii) Assuming that the vague description of the property comes within the purview of "formal defect" or "other sufficient grounds", was not appellate Court justified in the facts and circumstances of this case .to grant permission to the Plaintiff t-D withdraw such suit with liberty to institute a fresh suit? (iv) Is the High Court precluded from interfering with the order granting withdrawal u/s 115, Civil Procedure Code? 4. To appreciate the contentions, Order 23, Rule 1(2) may be quoted: (2) Where the Court is satisfied (a) that a suit must fail by reason of some formal effect, or (b) that there are other sufficient grounds for allowing the Plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the Plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such sui t or such part of a claim. The expression "formal defect" does not cover any defect pertaining to the merits of a case. The defect affecting the root of the Plaintiff's case is not a formal defect. Failure of the Plaintiff to prove his case is not a ground for allowing the Plaintiff to withdraw his suit under Clause (2). This is settled I by the judgment of the Privy Council in Watson v. Collector of Rajasthan 13 M.I.A. 160. The classical pronouncement was put thus: There is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of joinder either of parties or of the matters in contest in the suit, to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them. Order 7, Rule 3 prescribes that: Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Order 20, Rule 9, CPC shows that the description of the property to be contained in the decree would be in the same language as in Order 7, Rule 3, Code of Civil Procedure. The question is whether non-compliance with the Order 7, Rule 3 amounts to a defect in form or in substance. Despite repeated opportunities being given, Mr. Ramdas was unable to cite a single decision to show that this defect is one of form. In my view the omission to give a proper description of the disputed property in some manner amounts to a defect in substance. Plaintiff's suit is for eviction of Defendants from the trespassed area. One of the questions to be determined in the suit is the exact area of the trespassed land. A map can fully locate the disputed land. It may also be described by boundaries or by plot numbers if there has been surveyor settlement. The question as to what is the trespassed area is one which goes to the root of the case and does not relate to a defect" of form in the suit. Evidence to be laid on either side must clearly say as to which land the witnesses were deposing. Their evidence cannot be properly appreciated unless the required description under.' Order 7, Rule 3 is given. It is elementary that no Court would pass a decree which would be inexecutable or would be rendered infructuous. Evidence to be laid on either side must clearly say as to which land the witnesses were deposing. Their evidence cannot be properly appreciated unless the required description under.' Order 7, Rule 3 is given. It is elementary that no Court would pass a decree which would be inexecutable or would be rendered infructuous. Even if, the Court finds that the Plaintiff had title and possession in respect of the suit lands, in the absence of a proper description as mentioned in Order, 7 Rule 3, CPC Code, the decree cannot be executed. Accordingly, Order 20, Rule 9 prescribes that the identical description as provided in Order 7, Rule 3 would be also embodied in the decree. Thus what exactly is the land or the area of the land over which the dispute exists is a question which goes into the root of the matter relating to substance of the case, and not of form. The omission of such a description either in the plaint or non-supply of a map annexed to the plaint or in the course of evidence cannot be classified as a formal defect within the meaning or Order 23, Rule 1(a), Code, of. Civil Procedure. The leaned Subordinate Judge did not give any reason in his judgment as to why he treated such omission a, a for mala fide defect.; He merely stated: Such vague description of the suit property constitutes a formal defect as a result of which the suit is bound to fail. Doubtless due to such defect the suit would fail as 'the 'ultimate decree to be passed would be inexecutable and that no Court pass such a decree. But the defect for which the suit Could fail is not a formal one. I would accordingly uphold Mr. Misra's contention. 5. Mr. Ramdas contends that defect in this case would come within the expression "other sufficient grounds". This was not so argued before the learned Subordinate Judge nor has he accepted the defect as coming within its purview. There is some conflict of authorities as to whether this expression should be construed as ejusdem generis with "formal defect" in Clause (a) sub-rule. One view is that it should be so construed. The view is that the expression would mean a reason "sufficient on grounds" at least analogue to those specified immediately previously. That is a distinct difference in the two modes of constructions. One view is that it should be so construed. The view is that the expression would mean a reason "sufficient on grounds" at least analogue to those specified immediately previously. That is a distinct difference in the two modes of constructions. The expression "ejusdem generis" is more restrictive than the expression "atleast analogous". The former expression means "of the same kind", where as the latter expression means "bearing some correspondence with or resemblance of. It is unnecessary in this case to examine whether the expression "other sufficient grounds" should be given restrictive or wider connotation as the ground was never urged before the learned Subordinate Judge. But that apart Mr. Ramdas has not been able to urge convincing argument as to how non-supply of a map would come within the meaning of the aforesaid expression. I therefore do not propose to express my view on this argument which is not permitted to be raised for the first time in the Civil Revision. 6. The third question for consideration is whether the appellate Court should have permitted withdrawal of the suit the facts and circumstances of the case. Order 23, Rule 1(2) prescribes that the Court must be first satisfied that any of the conditions laid down in Sub-clause (a) or (b) exist. Even if, the Court is so satisfied he is not bound to grant permission to withdraw without taking into consideration other features of the case relating to the conduct of the suit. The language used is Court may grant the Plaintiff permission to withdraw". Mr Ramdas contends that the word "may" is to be construes "must". I am unable to accept such a contention. The word "may" in the phraseology used cannot be construed as "shall". The matter of granting permission under this rule is within the discretion of the Court, and in so doing it is open' to the Court to take into consideration the various factors affecting the conduct of the Plaintiff in relation to the suit. The word "may" in the phraseology used cannot be construed as "shall". The matter of granting permission under this rule is within the discretion of the Court, and in so doing it is open' to the Court to take into consideration the various factors affecting the conduct of the Plaintiff in relation to the suit. There are abundant authorities taking the view that the object of the rule is not to enable the Plaintiff after he has failed to conduct his suit with proper care and diligence and after his witnesses have failed to support his case, to obtain the opportunity of commencing trial afresh in order to avoid the result of his previous conduct of the case and so to prejudice the opposite party. (See Hira Lal Mitra Vs. Uday Chandra Dey, though the facts of the case are not applicable to this case). This principle was followed in Singhai Rajila v. Kanhaia AIR 1922 Nag. 84. In that case the Plaintiff's suit was for possession of land and for injunction ordering the Defendants to remove the wall and to close a door. Plaintiff's suit was dissects "4 In appeal the Additional District Judge found in course of the arguments that there was no correct materials on record as to which of the two maps was the true map. He allowed withdrawal of the suit with liberty to file a fresh suit holding that he found difficulty as to which map was the correct map. The High Court set aside the order of the Additional District Judge and refused permission for withdrawal of the suit by making the following observation: It appears to me clear that the parties quite understood what were matters in" (dispute between them, and exactly what it was that the Plaintiffs claimed. I do not think, the Additional District Judge would have had the slightest difficulty in 'understanding the nature of the dispute if he had visited the site as he was asked to do, and as he could easily have done as the site is in Saugor town. If necessary he could have called for a further map, and if necessary he could have recast the issues though I doubt if even this would be necessary. The difficulty caused by the lettering of the issues and judgment was not insuperable and could have been surmounted without necessity of a fresh suit. If necessary he could have called for a further map, and if necessary he could have recast the issues though I doubt if even this would be necessary. The difficulty caused by the lettering of the issues and judgment was not insuperable and could have been surmounted without necessity of a fresh suit. In other words the Additional District Judge by taking trouble could have got over the difficulties he complains of, which are more apparent than real. By being allowed to bring fresh suit the Plaintiffs gain an undoubted advantage, being thereby enabled to make good of defects in their case other than the failure to provide accurate map. It is thus apparent that the court refused permission for withdrawal as by that time evidence had been taken. In refusing withdrawal of the suit for failure of the Plaintiff to provide an accurate map, the Court had to take into consideration further features that the Plaintiff would thus be enabled to make good of defects in evidence which bad already been recorded adverse to his case. Sanivarapu Venkata Heddi v. Nimmakayala alias Nagella AIR 1949 Mad. 44J the same view was taken. In that case both the parties had filed map with their plaint and written statement. Permission to withdraw the suit was granted by the appellate Court. His Lordship refused withdrawal observing: 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 Plaintiff along with his plaint and the plan filed by the Defendants ext. D-l. If it wanted a more detailed and accurate sketch then 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, the doubts it had. The aforesaid authorities bring into bold relief the essential principle that permission for withdrawal of the suit with liberty to file a fresh suit under Order 23, Rule (2)(a) or (b) cannot be granted as a matter of course and the Plaintiff can not demand it as a matter of right. The aforesaid authorities bring into bold relief the essential principle that permission for withdrawal of the suit with liberty to file a fresh suit under Order 23, Rule (2)(a) or (b) cannot be granted as a matter of course and the Plaintiff can not demand it as a matter of right. The Court has to take into consideration all the factors involved in the case and then exercise his discretion in a judicious manner. In this case the learned appellate Court has not at all adverted to an feature which I have elaborately referred to para 1 of this judgment. The broad features are that the Defendants put an objection that the description of the property given by the Plaintiff in the plaint was vague. They filed a sketch map showing the area claimed by them. Cognisant of the objections, the Plaintiff lay by. Evidence was taken and the case was closed. Plaintiff filed an application for appointment of a Civil Court commissioner to demarcate the trespassed area. Application for withdrawal of the suit could have been filed before the trial Court before evidence was gone into. It is only long after the appeal was lodged, an application for withdrawal was filed. The appellate Court ought to have heard argument of the appeal and along with it ought to have considered the application for withdrawal. The reason is apparent. If the appellate Court would have been satisfied with the Plaintiff's application dated 3-12-1961 for appointment of a survey knowing Civil Court commissioner, it could have itself appointed a commissioner for filing a map and could have accepted it if there was no objection or it could have remanded the suit to the Court if it was of the opinion that the trial Court exercised its jurisdiction in refusing the prayer illegally or wIth material irregularity. It is some-what remarkable that the learned lower appellate Court did not at all apply his mind to these aspects of the case. Even assuming that the defect was a formal defect, the appellate Court should have taken all these factors into consideration, before granting withdrawal. If these features are taken into consideration, the application for withdrawal of the suit cannot be allowed. 7. The residual question for consideration is whether this Court should interfere in Revision and set. aside the order of the appellate Court allowing withdrawal. If these features are taken into consideration, the application for withdrawal of the suit cannot be allowed. 7. The residual question for consideration is whether this Court should interfere in Revision and set. aside the order of the appellate Court allowing withdrawal. The scope of the power u/s 115, CPC has been pronounced in a series of Privy Council and Supreme Court decisions. It is unnecessary to cite all those authorities. The words "illegally" and "material irregularity" within the meaning of Section 115(c) do not cover either errors of fact or law. They do not refer to the decision arrived at, but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with(See Keshardeo Oharnria v. Radha Kissen Chumria AIR 1963 S.C. 23). I have already discussed how the learned lower appellate Court did not keep in view the law on the point while permitting withdrawal of the suit. It is unnecessary to repeat the same. It is sufficient to say that he exercised his jurisdiction in the matter of granting withdrawal with material irregularity. Such an order is liable to be quashed in the Civil Revision. 8. I would accordingly allow the Revision and quash the order allowing the withdrawal of the suit. The case would go back to the lower appellate Court for hearing the appeal on merits. In course of hearing it is for him to consider whether the application filed in the trial Court for appointment of a Civil Court Commissioner on 13-12-1961 is to be allowed. That is a matter on which I express no opinion. In the circumstances, there would be no order as to costs. Revision allowed. Final Result : Allowed