JUDGMENT J.B. Singh, Member - This is a defendant's revision against order dated 9-1-1981 passed by learned Additional Commissioner, Jhansi Division, Jhansi in first appeal no. 7/41/13 (1978-79)/Hamirpur ordering withdrawal of the suit with permission to file fresh suit subject to payment of Rs. 50 as costs to be paid within one month from the date of the order. 2. I have heard the learned counsel for the parties and have perused the record. 3. It has been argued that the plaintiff had withdrawn the previous suit after the close of evidence of parties on 23-9-1977 with permission to file a fresh suit then this suit was filed. The plaintiff had claimed ?rd share. The trial court decreed their suit only for half share and held half share of defendant and the basis for the share claimed by the plaintiff was pleaded in para 4 of the plaint and it was also stated by Kanbaiya P.W. 1 one of the plaintiffs, therefore, the order of withdrawal was illegal. Reliance has been placed on 197 2 R.D. page 72, 1972 AIR page 590, 1957 AWR page 14 and 1957 R.D. page 167, 1978 R.D. page 203. 4. It was argued in reply that order XXIII rule 1 provides permission of withdrawal on any other ground and the order was subject to payment of costs and is, therefore, justified. 5. No reason has been given for ordering withdrawal of the suit with permission to file a fresh suit. The order as such is defective. The plaintiff cannot be allowed to withdraw suit as of right. He was awarded one opportunity for withdrawing the previous suit by order dated 23-9-1977. The amendment in plaint in para 4 and the statement of Kanhaiya plaintiff do disclose the basis of claim of share of the plaintiff, therefore, the order is highly unjustified and is liable to be set aside. 6. In view of the above, the revision application is allowed. The impugned order is set aside and the application for withdrawing the suit is rejected. The first appeal is restored which shall be heard and decided by the lower appellate court on merits. 7. Let the records be sent to the lower appellate court at once for disposal of the first appeal according to law on merits after hearing the parties.