ORDER K.B. Asthana, J. - This application in revision is directed against an order passed in an appeal by the learned Addl. Civil Judge of Dehradun allowing the Plaintiff Appellant to withdraw the suit with permission to file a fresh suit. 2. It appears that the Plaintiff and the Defendant are landlord and tenant respectively. The Plaintiff after terminating the tenancy of the Defendant brought a suit in the court of the Munsif of Dehradun for ejectment of the Defendant and for recovery of arrears of rent and damages. In the plaint the Plaintiff had made an averment that the accommodation let out to the Defendant was constructed by him in the year 54, therefore the suit was not barred by the provisions of the UP (Temp.) Control of Rent and Eviction Act. The defence inter alia was t lat the accommodation in question was a pre 1951 construction and the suit was barred by the provisions of the Rent Control Act. Amongst others a plea was also raised that the notice of termination of the tenancy was not valid. The main controversy in the suit before the learned Munsif was one of fact whether the accommodation in question was a pre-1951 construction or a post 1951 construction. The Munsif appears to have inspected the locality and recorded his impressions. Inter alia the learned Munsif recorded that at the spot the learned Counsel for the Defendant had pointed out the extent of the accommodation let out which appeared to be more than what the Plaintiff claimed in the plaint as having been let out. However, on the evidence on record the learned Munsif found that the accommodation in question was pre-1951 and dismissed the suit of the Plaintiff. 3. On appeal the Plaintiff applied for permission to file additional evidence. He was given ample opportunity to do so. Some survey maps were brought on the record, it appears, at the instance of the Defendant during the trial. Apparently the Plaintiff wanted to adduce additional evidence to show that the accommodation in question was post-1951 construction. The Plaintiff filed certain maps. Then an application was made by the Plaintiff on 1-4-1968 praying that the learned court may be pleased to allow the Plaintiff to withdraw the suit with permission to institute a fresh suit. Apparently the Plaintiff wanted to adduce additional evidence to show that the accommodation in question was post-1951 construction. The Plaintiff filed certain maps. Then an application was made by the Plaintiff on 1-4-1968 praying that the learned court may be pleased to allow the Plaintiff to withdraw the suit with permission to institute a fresh suit. The grounds mentioned in the application, which is paper No. 39 A 1 on record are general and vague. There is, however, this averment in that application: "The Defendant has also made encroachments and it is just and proper that the whole matter be agitated and decided together instead of being agitated and decided piecemeal to avoid the objection of Order 2 Rule 2, Code of Civil Procedure." This application is not verified by the Plaintiff. It is not supported by any affidavit. An objection was filed by the Defendant to this application controverting the allegations made, the defence case always being that he was a tenant of whatever accommodation was in his possession and was not a trespasser of any part thereof. 4. The learned Civil Judge in allowing the Plaintiff's application seems to have been very much influenced by the circumstance that the Defendant had introduced unnecessary and great complication by producing many maps without full evidence and thus creating confusion and by the circumstance that the Defendant had also made encroachments, for which the learned Judge relied upon the inspection note of the learned Munsif which I have referred to above, in which it was observed that the Defendant's counsel had pointed out at the spot the area under the possession of the Defendant as tenant which appeared to be more than what the Plaintiff claimed to be the tenanted premises. 5. The learned Counsel for the Defendant Applicant contended that by making wrong assumptions of the fact which were not borne out by any evidence on record and under a mis-conception as to his powers, the learned Civil Judge acted with material illegality and irregularity in the exercise of his jurisdiction inasmuch as he exercised a power which he could not have exercised in law on the true facts and circumstances of the case borne out by the material on record. A reference was made by the learned Counsel to a Division Bench decision of this Court in the case of Vidyadhar Dube v. Harcharan 1970 AWR 491 in support of the proposition that after a decree has been passed in a suit no absolute right remains in the Plaintiffs to withdraw a suit and the appellate court ought not to allow withdrawal of a suit with permission to file another suit if it prejudices the rights of the Defendant under the decree and deprives him of the benefit of the decree under appeal. 6. Sri S.D. Agarwal, learned Counsel appearing for the Plaintiff opposite party, rightly does not dispute the proposition. He has not based the case of the Plaintiff on the footing that he had an absolute right to withdraw the suit. What the learned Counsel submitted on behalf of the Plaintiff opposite party was that the learned Civil Judge having recorded a finding on the basis of the material on record to the effect that there was a formal defect in the suit, this Court ought not to interfere as at best it would amount to mere error of law and not of jurisdiction. In the alternative learned Counsel contended that it having come on record that the Defendant was claiming possession to some more land and buildings than actually were let out to him, it would be just and proper that the Plaintiff be allowed to file a consolidated suit rather than continue with the instant suit as there is good reason to hold that a subsequent suit brought by the plaint is for possession of the extra portion in possession of the Defendant would be barred by the provisions of Order 2, Rule 2, Code of Civil Procedure. 7. I find some difficulty in holding that there was material on record before the learned Civil Judge to hold that the Defendant was trespasser in respect of some part of the accommodation belonging to the Plaintiff which was not subject matter of the instant suit. I very much doubt that the inspection note of the learned Munsif and his observations which only amounted to his impressions, would amount to a pleading by the Defendant that he was in possession of more accommodation than actually let out. I very much doubt that the inspection note of the learned Munsif and his observations which only amounted to his impressions, would amount to a pleading by the Defendant that he was in possession of more accommodation than actually let out. If the learned Munsif's inspection note is carefully read it will mean that when the Defendant's counsel showed at the spot the extent of the accommodation let out it created the impression on the mind of the Munsif that the accommodation pointed out was more than what was included in the plaint by the Plaintiff. I do not know how merely on the basis of the inspection note of the learned Munsif the Plaintiff could take advantage of the situation and without committing himself that the tenancy did not extend to the limits as claimed by the Defendant's counsel at the inspection filed that the Defendant was actually a trespasser on some of the land or property be longing to the Plaintiff. The narration in the application being without verification and unsupported by any affidavit ought not to have been taken judicial notice by the learned Civil Judge. It was open to the Plaintiff to formally state on oath before the court that the Defendant had actually trespassed and then a situation would have arisen for consideration by the court whether 'in those circumstances the Plaintiff ought to be permitted to withdraw the instant suit. Apart from the misreading of the material on record the learned Civil Judge without any admissible material on record, seems to have decided in favour of the Plaintiff. 8. Once it is demonstrated that there was no material on record to support the finding of the learned Civil Judge that the Defendant had in his possession more accommodation than for which the suit had been filed by the Plaintiff, the basis for the order passed disappears. I do not find any admission or statement on behalf of the Plaintiff on record admitting that the Defendant was in possession of more than for which the suit had been filed. Since the learned Civil Judge proceeded on an erroneous basis the exercise of power by him Under Order 23 Rule 1, CPC becomes vitiated. He has acted in the exercise of his jurisdiction with material illegality and irregularity. 9. Since the learned Civil Judge proceeded on an erroneous basis the exercise of power by him Under Order 23 Rule 1, CPC becomes vitiated. He has acted in the exercise of his jurisdiction with material illegality and irregularity. 9. Learned Counsel for the Plaintiff opposite party drew my attention to a Division Bench decision of this Court in the case of Sheo Kumar Dwivedi and Others Vs. Thakurji Maharaj Brijman and Another, AIR 1959 All 463 and contended that what the court below had done amounts to mere error of law and this Court ought not to interfere in the exercise of its revisional jurisdiction. I find that that the facts in that case were different from the one in the instant case. There the permission to withdraw the suit was granted by the trial court itself before any decree in the suit was passed. Further the learned Judges constituting the Bench relied upon Supreme Court decision in Chamaria's case, which, according to them, negatived the power of this Court merely to interfere on erroneous decisions on questions of law. Since then Chamaria's case itself has been explained in later decisions by the Supreme Court. As I understand the law, an erroneous decision of a subordinate court on a question of law or even on facts which results in the exercise of a power by a court, one way or the her will always raise a question of jurisdiction. Only in those cases a question of jurisdiction will not arise where on an erroneous decision of law the rights of the parties vis-a-vis the subject matter of the suit stand decided. Wherever it is a question of exercise of power I think under the common law of certiorari a question of jurisdiction will always arise when under a misconception of law, assumption of facts not borne out by the material on record, a court or authority exercised a power. 10. For the reasons given above, I allow this application in revision, set aside the order of the court below and direct that the appeal of the Plaintiff shall be heard and decided in accordance with law. It is always, however, open to an Appellant to withdraw an appeal for which he has a right subject to any consequential direction given by the court. 11. In the circumstances of the case I direct the parties to bear their own costs.