JUDGMENT Kaushal Kishore, Member - This is a defendant's revision petition against the order dated 16-11-1979 by the learned Additional Commissioner, Faizabad Division, Faizabad, allowing the suit to be withdrawn with permission to file a fresh suit on payment of costs. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The suit u/Section 229-B of the UP ZA & LR Act had been dismissed on merits by the learned trial court and during first appeal, on the application of the plaintiff respondent that he had omitted to write in the plaint that Smt. Abbiraji had only a life interest in the land in suit and there was a fatal defect the impugned order was passed. 4. The learned counsel for the applicant has argued that the order of the learned Additional Commissioner is not a speaking order and it does not include the ingredients and their consideration as required under Order XXIII Rule 1 (3) CPC. He further argued that omission was not a formal defect and if a plea was not taken in the plaint, it could be added by amendment and even its absence could not amount to a formal defect, in support he has cited rulings reported in 957 RD 199 and 1948 RD 228. The learned counsel for the opposite party has argued that the application was under Order XXIII, Rule 1 (3) (a), CPC and in support has cited rulings reported in 1976 RD Vol. II 305 and 1970 RD 410. He further argued that the amendment was not possible since section 80 C.P.C. notice had already been given and in support had cited a ruling reported in AIR 1973 Allahabad 466 and that even an erroneous order cannot be challenged in revision, in support, he has cited a ruling reported in AIR 1973 SC 76 . The learned counsel for the applicant further argued that the amendment is not prohibited on the ground of notice u/Sec. 80 CPC and the jurisdictional error was there. 5. I find that none of the two rulings 19/6 RD Vol. II 305 and 1970 RD 410 can help the opposite party. The latter ruling applies to a case in appeal where the plaintiff had won and the present case, the plaintiff had lost and the defendant had acquired a vested interest. 5. I find that none of the two rulings 19/6 RD Vol. II 305 and 1970 RD 410 can help the opposite party. The latter ruling applies to a case in appeal where the plaintiff had won and the present case, the plaintiff had lost and the defendant had acquired a vested interest. The first ruling also says that the appellate court has got to be very cautious in granting such permission and that a court is not bound to grant such permission but on satisfaction, there is discretion to grant the permission. It was an amendment about only minor detail of the case and in view of the fact that in the written statement the defendant had already challenged the right of Smt. Abhairaji, in any case, the fact had to be enquired into while giving a finding or decision and really there was even no need for any amendment. Even if amendment was considered necessary it could be allowed without any bar u/Sec. 80 CPC. I also find that it is not a case of an erroneous finding in granting permission to withdraw the suit but an exercise of jurisdiction not vested in the court if any permission to file a fresh suit is given without sufficient basis. She ruling reported in 1957 RD 197 makes it necessary that a formal defect such as to detect the case must be there for justifying grant of permission to file a suit. Therefore, the court had no jurisdiction to grant permission. 6. I also find that the learned Additional Commissioner has not passed a speaking order. Had it been attempted, the learned Additional Commissioner himself would have detected the weakness in the order. In the circumstances, this is a fit case to allow the revision and set aside the order of the learned Additional Commissioner dated 16-11-1979 in so far as it relates to permission to file a fresh suit. 7. The revision petition is, accordingly, allowed and the order dated 16-11-1979 by the learned Additional Commissioner in so far as it relates to file a fresh suit is hereby set aside.