JUDGMENT Roy, J.: 1. This Rule is directed against an order dated March 22, 1975 passed in Title Appeal No. 13 of 1972 of the Court of the learned Subordinate Judge, Asansol allowing the plaintiffs-appellants to withdraw the appeal as well as the suit with liberty to sue afresh on the same cause of action if not otherwise barred subject to payment of Cost of Rs. 32/- to the defendant-respondent. 2. The plaintiffs appellants being opposite parties Nos. 1 to 3 in the above Rule instituted Title Suit No. 40 of 1970 in the First Court of the learned Munsif at Asansol against the petitioner and the opposite party No.2, namely the defendant Nos. 1 and 2 respectively for a decree for mandatory injunction restraining the defendants from erecting any structure and/or making any construction on C.S. plot Nos. 7107/7993, 7101 and 7102 within the municipal limits of Asansol at Paddotalao, Asansol. 3. The plaintiffs case was, inter alia, that since the time of their predecessors-in-interest the plaintiffs had been in possession of the said suit lands and on the basis of mutual family partition, the plaintiffs obtained the suit lands from Hazi Abdul Motaleb, their uncle, by a registered deed of 1965. In the C.S. and R.S. records of rights the suit lands were recorded in the names of their said uncle Hazi Abdul Motaleb and the plaintiffs respectively. It was further alleged by the plaintiffs that the defendant No.1 was a tenant under the plaintiffs and defaulted in payment of rents and was in unlawful and unauthorised possession of the suit lands and the said defendant No. 1 with his associate, namely the defendant No.2 had been trying to erect unauthorised and illegal constructions and structures on the suit lands without any authority. 4. The defendant No. 1 contested the said suit and filed a written statement, inter alia, denying the material allegations made in the plaint. 4. The defendant No. 1 contested the said suit and filed a written statement, inter alia, denying the material allegations made in the plaint. The said defendant contended, inter alia, that the suit was barred under sections 34, 38 and 41 of the Specific Relief Act and the suit was also barred by limitation, that the suit was bad for defect of parties because other necessary parties were not impleaded, that the plaintiffs had no right, title and interest in the suit lands, that the plaintiffs had no possession in the suit lands within 12 years before the suit and the suit lands did not appertain to C.S. Plot Nos. 7101/7993, 7101 and 7102 and there was no relationship of landlord and tenant between the parties to the suit and the defendant No.1 had been in open and hostile possession of the suit lands by various overt acts set out in the written statement for more than 20 years and title of the plaintiffs in the suit lands, even if any at any point of time, had been extinguished by adverse possession of the defendant No.1. It was also contended that the plaintiffs not having prayed for any declaration of their title to the suit lands, the suit was not properly constituted and was not maintainable. 5. The learned Munsif by his judgment and decree dated December 15, 1971 dismissed the said suit, inter alia, on the finding that the plaintiffs had failed to establish that the suit lands were never their ancestral properties or that those were the properties of Hazi Abdul Motaleb or that the plaintiffs ever had any interest in the suit lands, that it could not be held that the suit lands appertained to plot Nos. 7101/7993, 7101 and 7102 and that there was no evidence that the plaintiffs had inducted the defendant No. 1 as their tenant or that the defendant No. 1 had ever paid any rent to the plaintiffs. It was further held by the learned Munsif that the plaintiffs failed to establish that they had ever been in possession of the suit lands but the defendant No. 1 had been in possession of the suit property for more than 12 years and that the plaintiffs claim, even if any, was barred by limitation on account of adverse possession by the defendant. The suit was not properly framed and was not maintainable inasmuch as the plaintiffs not having alleged that the defendants had already made constructions which were to be removed, the plaint did not disclose any cause of action for mandatory injunction. 6. The plaintiffs had thereafter preferred an appeal, being Title Appeal No. 13 of 1972 of the Court of the learned Subordinate Judge, Asansol, against the aforesaid decree dismissing the plaintiffs suit. After about 3 years on September 11, 1974, the plaintiffs made an application under Order 23 Rule 1 of the Code of Civil Procedure for leave to withdraw the appeal and the suit with liberty to institute a fresh suit in respect of the same subject matter of the suit and on the same cause of action. In the aforesaid application it was inter alia contended by the plaintiffs that there was formal defect inasmuch as the plaintiffs should have brought the suit for declaration of title and recovery of possession and the trial court had also found that the suit was not properly framed and not maintainable in law. 7. The defendant No.1 opposed the said application under Order 23 Rule 1 of the Code of Civil procedure by filling a written objection contending, inter alia, that after the judgment by the trial court holding inter alia that the defendant No.1 had acquired title by adverse possession in the suit lands, the defendant No.1 had acquired a vested right and the permission to withdraw the suit with liberty to sue afresh on the same cause of action at that stage would take away the vested right acquired by the defendant No.1. 8. The learned Subordinate Judge, however, allowed the said application for withdrawal of the suit with liberty to sue afresh on the same cause of action and as aforesaid, against this order of the learned Subordinate Judge, a revisional application was made by the defendant No.1 to this Court whereupon the instant Rule was issued. 9. Mr. Sudhis Das Gupta, the learned Advocate for the petitioner appearing with Mr. 9. Mr. Sudhis Das Gupta, the learned Advocate for the petitioner appearing with Mr. Pradipta Roy Advocate challenged the impugned order of the learned Subordinate Judge mainly on three grounds, namely (1) that in view of the finding by the trial court that the defendant had acquired title to the suit lands by adverse possession, the defendant had acquired a vested right and without reversing such finding of the trial court, the appeal court was not competent to allow the plaintiffs to withdraw the suit with liberty to sue afresh on the same cause of action thereby nullifying the vested right acquired by the defendant No.1, and (2) that the suit having been dismissed on merits, the plaintiffs should not be allowed in appeal to withdraw the suit with liberty to sue afresh on the ground of formal defect, and (3) that in the facts and circumstances of the case, the formal defect, could be removed easily by amendment of the plaint and when formal defect can be removed by amendment of plaint, permission to withdraw the suit with liberty to sue afresh should not be made. In support of his first contention, Mr. Das Gupta relied on the decision made in the case of (1) R. Rammurthi Aiyar v. Rajeswara Rao, reported in AIR 1973 S.C. page 643 wherein it was held that if any vested right comes into existence before the prayer of withdrawal is made, the court is not bound to allow withdrawal. In the said case the defendant shareholder applied for leave to buy at a valuation the share of the plaintiff asking for sale under section 3 of the Partition Act and the court having granted such leave, the defendant gained some advantage or the privilege of buying the share of the plaintiff and thus acquired a vested right and after such acquisition of vested right, the leave to withdraw the suit under Order 23. Rule 1 of the Code of Civil procedure was disallowed. Mr. Das Gupta contended that in the instant case the defendant acquired a vested right in view of the finding by the trial Court that the defendant acquired title by adverse possession and after such acquisition of a vested right or privilege or advantage by the defendant, the plaintiff was not entitled to obtain leave to withdraw the suit with liberty to sue afresh on the same cause of action. Mr. Bidyut Kumar Banerjee, the learned Advocate for the opposite parties on the other hand contended that in the facts of the case, the aforesaid decision of the Supreme Court could be distinguished and that appeal being only one stage of the same legal proceeding, the finding by the trial court in favour of the defendant should not be held to have created any vested right to the defendant so as to take away the right of the plaintiff to withdraw the suit with leave to sue afresh, when the plaintiff had established existence of formal defect in the plaint, thus satisfying the conditions under Order 23, Rule 1 of Code of Civil Procedure. In this connection, Mr. Banerjee refers to the decision made in the case of (2) M/s. Hulas Rai v. Firm K. B. Basu & Co., reported in AIR 1968 S.C. page 111 wherein it was held that the language of Order 23, Rule 1, C.P. Code gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to sue afresh is sought under sub-rule (2), the plaintiff is precluded from instituting any fresh suit in respect of the same subject matter under sub-rule (3) and in such case the plaintiff asking for leave to withdraw the suit cannot be compelled to go on with the suit. In my view, this decision is of no assistance to the contention of Mr. Banerjee. In this case, before any decision was made by the trial court, permission to withdraw the suit without any leave to sue afresh on the same cause of action was made. Hence question of acquiring any privilege or vested right could not arise in the said case and further permission to withdraw a suit simpliciter and a permission to withdraw the suit with liberty to sue afresh on the same cause of action entail altogether different considerations. 10. In support of his second contention, Mr. Dasgupta referred to the decision in the case of (3) Mir Golam Kibria v. Raja Promatha Bhusan Debroy (39 CWN 586). 10. In support of his second contention, Mr. Dasgupta referred to the decision in the case of (3) Mir Golam Kibria v. Raja Promatha Bhusan Debroy (39 CWN 586). In the said case, R.C. Mitter, J. held that where an application for leave to withdraw a suit either with or without liberty to bring a fresh suit is made to the appellate court under Order 23, Rule 1 read with section 107, clause 2 of the Civil Procedure Code, the proper procedure for the appellate court to follow, if it is inclined to grant such permission to withdraw is to set aside the decree of the trial court and then grant permission to withdraw. I respectfully agree with the aforesaid decision of Mitter, J. Unless the decree appealed from is not reversed, some privilege or vested right acquired by a party in view of the decree appealed from remains in force and permission to withdraw the suit specially with liberty to sue afresh on the same cause of action cannot be granted so as to frustrate the privilege and/or vested right thus acquired by a party. Mr. Banerjee's contention that appeal is the continuation of one stage of the suit and such a finding of the trial court in a suit pending in appeal cannot confer any vested right and/or privilege to the successful party can not be accepted. It is true that in a sense appeal is continuance of the suit and is one stage of a legal proceeding but that does not mean that the finding and/or adjudication made by the trial court in favour of a party looses its force simply because an appeal has been taken from the decree passed in the suit. So long the said finding and/or adjudication is not set aside by the Appeal Court, such adjudication and/or finding by the trial court remains in force and the party in whose favour such adjudication and/or finding has been made certainly acquires an advantage and/or vested right in view of such adjudication and/or finding. 11. Mr. Dasgupta in support of his third contention relied on the decision made in the case of (4) Ram Saran Mondal v. Radha Raman Mondal, reported in AIR 1929 Calcutta page 88. In the said decision Mr. 11. Mr. Dasgupta in support of his third contention relied on the decision made in the case of (4) Ram Saran Mondal v. Radha Raman Mondal, reported in AIR 1929 Calcutta page 88. In the said decision Mr. Justice Page held inter alia that it is not intended or contemplated by Order 23, Rule 1 of the Code of Civil Procedure that after a suit has been tried and dismissed on the merits, the plaintiff should be permitted to withdraw in appeal from the suit and to start proceeding all over again against the successful defendants merely because there was also a formal defect in the frame of the suit. Mr. Justice Page also referred to the decisions reported in 13 MIA page 160 and 11 Calcutta Law Journal page 45. On the strength of these decisions, Mr. Dasgupta contended that the suit was liable to be dismissed on merit even apart from the fact that there is some formal defect inasmuch as the title of the defendant No.1 was found perfected by adverse possession. Hence, merely because there was a formal defect, permission to withdraw the suit with liberty to sue afresh on the same cause of action by the Appeal Court was unjustified. The aforesaid contention of Mr. Dasgupta is of substance and I uphold the same. Mr. Dasgupta next referred to a decision made in the case of (5) Gorelal v. Nandlal, reported in AIR 1953 Bhopal, page 32. It was held in that case that failure to claim proper relief was not a formal defect within the meaning of Order 23, Rule 1 and leave to withdraw the suit should not be granted if defect could have been removed by amendment of the plaint. Relying on this decision, Mr. Dasgupta submitted that on the face of the pleadings made in the plaint the plaintiff could easily ask for a decree of prohibitory injunction instead of mandatory injunction and the formal defect as pointed out by the trial court could have been removed easily by amending the plaint by simply changing the prayer for mandatory injunction to a prayer for prohibitory injunction. In such circumstances, leave should not be granted by the Appeal Court to withdraw the suit with liberty to sue afresh on the same cause of action simply on the ground of a formal defect as to the nature of the relief prayed for. In such circumstances, leave should not be granted by the Appeal Court to withdraw the suit with liberty to sue afresh on the same cause of action simply on the ground of a formal defect as to the nature of the relief prayed for. In my view, this contention of Mr. Dasgupta is of substance and should also be upheld. A party should not be granted leave to withdraw the suit with liberty to sue afresh on the same cause of action if the real dispute between the parties can be adjudicated in the suit already filed by him by making necessary amendments, if permissible in law. Multiplicity of legal proceeding is not to be encouraged and it is the duty of the Court to see that the other party is not put to the vagary of a new trial if the necessity of such new trial can be avoided by amendment of plaint in accordance with law. 12. In view of the reasons stated hereinbefore the impugned order cannot be sustained and the same is set aside and the Rule is made absolute. There will be, however, no order as to cost.