JUDGMENT H.N. Agarwal, Member. - This is a revision against the order dated 13.9.1973 passed by Sri R.C. Nigam, Additional Commissioner, Rohilkhand Division, Bareilly in Appeal No. 74 of 1971. 2. I have heard the learned counsel for the parties and have gone through the record. 3. The revisionists, Tota Ram and Nathoo Lal, had field a suit under Section 229-B, U.P.Z.A. & L.R. Act against the present opposite parties Smt. Leelawati, the State of U.P. and the Gaon Sabha. The suit as contested by Smt. Leelawati and was dismissed by the Sub-Division Officer by his order dated 4-1-71. The present revisionists filed an appeal before the Commissioner. When the appeal came up for hearing, they moved an application that the suit suffered from formal defect and prayed for permission to withdraw the suit with the liberty to file a fresh suit. The Additional Commissioner has rejected this application by his order dated 13-9-73. This order has been challenged in revision. 4. The grounds taken in the revisions are, firstly that the impugned order is no order in the eyes of law; Secondly that in view of the fact that no notices under Section 80 C.P.C. and 106 Panchayat Raj Act had been given to the State Government and the Gaon Sabha, the Plaint itself was liable to be rejected on this formal defect and the Additional Commissioner was bound to allow the application under order 23 Rule 1 of the C.P.C. thirdly, that the courts below erred in law in holding that as the State Government and the Gaon Sabha had taken on objection, the suit cannot fail, and lastly, that the courts below have based their judgment on surmises and conjectures. 5. Order 23 Rule 1 of the Civil Procedure Code reads as follows:- "23. R. 1 Withdrawal of suit or abandonment of part of claim:- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Provided that here the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. Provided that here the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule(1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is in his opinion for the benefit of the minor or such other person. (3) Where the Court is satisfied:- (a) that a suit must fail by reason of some formal defect, or (b) that there are 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 such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff:- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3). He shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit of a claim under sub-rule(1) or to withdraw under sub-rule(1) any suit or part of a claim without the consent of the other plaintiffs". 6. It has to be seen whether the requirements of the above rule were fulfilled in the present case. Sub-rule(3) requires that the Court must be satisfied either(a) that the suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit. 6. It has to be seen whether the requirements of the above rule were fulfilled in the present case. Sub-rule(3) requires that the Court must be satisfied either(a) that the suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit. The learned counsel for the revisionist has tried to argue that his suit must fail by reason of the formal defects of the notices under Section 80 C.P.C. and 106 Panchayat Raj Act having not been given. This plea has no sub-stance whatsoever. The revisionists' suit was dismissed not on the ground of these formal defects but on merits. The trial court had held that the revisionist had no rights in the land at all, whereas the contesting opposite party Smt. Leelawati had proved herself to be the heir of Hori Lal, the deceased tenure holder. Neither the State Government nor the Gaon Sabha who were both impleaded as defendants nor anybody else had ever taken the plea that the suit was defective on account of the notices under Section 80 C.P.C. and 106 Panchayat Raj Act not having been given. Both the contesting sides before me cited a number of rulings that notice under Section 80 C.P.C. as mandatory or that it could be waived, but these rulings are immaterial in the present case. The point is that none of the parties had ever raised the question that the suit as defective on account of the omission to given the notices. If there was any omission, it was on the part of the plaintiff-revisionists who cannot now be permitted to derive the advantage of their own error, or omission and given permission to file a fresh suit and thus harass the opposite parties once again having lost the original suit. No other formal defect than the so-called defect of the omission to give notices under Section 80 C.P.C. and Section 106 Panchayat Raj Act have been shown nor has any sufficient ground been shown why the revisionists should be given permission to file a fresh suit. 7. No other formal defect than the so-called defect of the omission to give notices under Section 80 C.P.C. and Section 106 Panchayat Raj Act have been shown nor has any sufficient ground been shown why the revisionists should be given permission to file a fresh suit. 7. The learned counsel for the revisionists has cited A.I.R. 1965 S.C. 11 to show that the failure to serve a notice under Section 80 C.P.C. complying with the requirements of the statute will entail a dismissal of the suit and that the object of the notice is to give the Government or the public servant an opportunity to reconsider it or his legal position and if that course is justified to make amends or settle the claim out of Court.' This principle while undisputed, does not in any way help the revisionists. 8. Another decision cited, which is also immaterial for the present cases is Jugnu v. Birbal, 1976 R.D. 244 which discusses the question whether the notice to the State Government under Section 80 C.P.C. is mandatory. 9. Yet another decision cited on the same point is 'Khancheru v. Hansraj, 1978 A.W.C. (Revenue) 36. The learned counsel for the revisionists has, however, failed to cite any ruling on the scope of Rule 1 of Order 23 C.P.C. which may support his case. 10. The learned counsel for the opposite parties has, on the other hand, cited "Dhyan Singh v. Union of India, A.I.R. 1958 S.C. 274 in which a learned Bench of the Hon'ble Supreme Court has observed as follows:- "It is relevant to note that neither was this point taken by the respondent which is filed in answer to the appellant's claim nor was any issue framed on this point by the trial court and this may justify the inference that the objection under Section 80 C.P.C. had been waived." 11. Another decision cited by the learned counsel for the opposite parties to the same effect is Raj Kumar v. Vijai Kumar, AIR 1969 Allahabad 162. 12. Another decision cited by the learned counsel for the opposite parties to the same effect is Raj Kumar v. Vijai Kumar, AIR 1969 Allahabad 162. 12. Another decision cited by the learned counsel for the opposite party is "Ramdhani v. Shivlagan Singh, 1977 R.D. 208 in which the scope of Order 23, Rule 1 C.P.C. has been discussed at length by this Court and the following observation have been made:- "The position is thus fully established that the powers under sub-rule(3) of Rule 1 of Order XXII of the Code of Civil Procedure cannot be exercised by a Court loosely. The sub-rule cannot be used as a medium for harassing the defendants in unnecessary litigation by an unscrupulous plaintiff. The Court before exercising power under this sub-rule must specify what the formal defect in the suit is. If no formal defect is established, the court must record what grounds exist which are sufficient for allowing the whole process of litigation being started afresh. Where a 1 the contesting parties have been given sufficient and prolonged opportunity to produce their entire oral and documentary evidence, and the case is fixed for arguments, the proper thing is that the parties must argue the case and allow the trial court to record a judgment. The aggrieved parties may thereafter seek their remedy in appeal or revision". 13. The above principle would apply to the present case also. There was no justification for the learned Additional Commissioner to allow the request of the revisionists to give permission to file a fresh suit at all. The learned Additional Commissioner has thus not committed any illegality or material irregularity in the exercise of jurisdiction in rejecting such permission. The revision has no force and is hereby dismissed.