JUDGMENT I.B. Singh, Member. - The second appeal is ordered to be converted into revision as the order of the trial court was not appealable and was not an order under Order 43 Rule 1 of the C.P.C. and the first appeal was wrongly heard as an appeal instead of a revision. There is prayer for converting the appeal into revision, it is allowed. Therefore, this second appeal shall be treated as revision and will be numbered so. 2. This is a plaintiff's revision against judgment and decree dated August 24, 1982 passed by learned Additional Commissioner, Agra Division, Agra, dismissing appeal No. 133/81-82/Mathura against order dated January 28, 1982 passed by the trial court allowing the plaintiff to withdraw the suit but refusing permission to file the suit afresh. 3. I have heard counsel for the parties and have perused the record. 4. It has been argued that the trial court and the lower appellate court both committed mistake in not allowing the application as a whole or rejecting it as a whole. Reliance has been placed on T.W. Ranganathan v. T.K. Subramaniam and others, A.I.R. 1971 (Mad.) 466, Balbir Singh v. Smt. Sulochana Devi, A.I.R. 1970 (Alld.) 382, Kamini Kumar Roy and another v. Rajendra Nath Roy, A.I.R. 1926 (Cal.) 233 and Durga v. Har Gopal S.A. No. 75-A of 1981-82 decided on November 18, 1982. 5. It has been argued in reply that there was no formal defect as required by Order 23, Rule 1 of the C.P.C., that the ground was not taken in the first appeal, that the discretion by the trial court was rightly applied. Reliance has been placed on Motilal Dutt v. Kalidas Bhattacharji and others, A.I.R. 1931 (Cal.) 107, Paira Ram and another v. Ganesh Dass and others, A.I.R. 1967 (Punj.) 337, Tata Iron and Steel Co., Ltd. v. Arun Chandra Bose and another, A.I.R. 1967 (Patna) 246 and Pt. Debi Sewak and others v. Yagya Dutt and others, A.L.J. 1972 p. 89 at p. 92 para 16, that the plaintiff knew that he had not moved application for mutation and wrongly alleged in the plaint to have moved it; it was his fault. 6. Debi Sewak and others v. Yagya Dutt and others, A.L.J. 1972 p. 89 at p. 92 para 16, that the plaintiff knew that he had not moved application for mutation and wrongly alleged in the plaint to have moved it; it was his fault. 6. It has been argued as rejoinder that the result of not moving application for mutation will be that the suit will barred by Section 34(5) of the U.P. Land Revenue Act and should end into rejection of the plaint hence it was sufficient reason to allow the application as a whole. 7. Order XXIII Rule (1)(3) of the C.P.C. runs as follows:- (3) "Whether 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......" 8. It has been laid down in 1972 A.L.J. page 82 at page 92 para 16 (supra) as follows:- (force supplied) "The last arguments of the learned counsel for the appellants was that appellants should be permitted to withdraw the suit with the liberty to bring a fresh suit. This argument too cannot be accepted. There was no formal defect in this case going to the root of the case, on the other hand the plaintiffs failed to prove that they were members of the family of Raghubans Raj, they cannot be given another chance to prove this fact because that would only mean encouraging introduction of frivolous litigation. Therefore, the suit cannot be permitted to be withdrawn with a liberty to bring a fresh suit on the ground of weakness of the plaintiffs evidence. This arguments, therefore, has no force in it." 9. It has been laid down in A.I.R. 1967 Patna page 246 (supra) following A.I.R. 1918 Patna as follows:- "that" sufficient grounds" contemplated in the second clause of Order XXIII Rule 1 of the Code of Civil Procedure 1908, should be grounds analogous to the grounds given in the first clause, and that" of plaint under Order VII Rule 10 of the C.P.C. for presentation to the proper court by court having no pecuniary jurisdiction of proper valuation does not amount to failure of suit." 10. It has been laid down in A.I.R. 1967 Punjab page 233 (supra) as follows:- "The object of O.23 Rules 1 and 2 Civil Procedure Code is to permit the plaintiff to have a fair trial on merits in case where the defects are in one or other form and can be rectified only by a de novo trial, and not in cases where the plaintiff wants to avoid his previous negligent conduct. The defect which justifies exercise of the Court's discretion in considering the question of making an order within order 23 Rule 1 and 2 of the Code, must be such as has the effect of shut-out of some error made in good faith by the plaintiff which can only be set right by fresh trial de novo. If the defect is due to the plaintiff's own fault, the court would be acting illegally and with material irregularity in the exercise of its jurisdiction in permitting the plaintiff to withdraw his suit and institute a fresh suit on the same cause of action." 11. It has been laid down in A.I.R. 1939 Calcutta page 107 (supra) as follows:- "The power given by the Code to the Court to give permission to withdraw a suit has to be governed by certain considerations and if it appears that those considerations were not present in a certain case it must be held that the order was passed without jurisdiction in its restricted sense that it exercised that power in the wrong exercise of jurisdiction or at any rate it was a material irregularity. The permission with liberty to bring a fresh suit should not ordinarily be given so as to cause much harassment to the opposite party. Such permission should only be given when the court is satisfied that the defect is not for any fault of the plaintiff but for discovery of certain facts which renders the suit in its present shape so defective. The duty of looking at the case from this stand point becomes more necessary if any application for withdrawal of a suit is presented in the first appellate court. The duty of looking at the case from this stand point becomes more necessary if any application for withdrawal of a suit is presented in the first appellate court. After having lost a party cannot ordinarily be permitted to withdraw with liberty to bring a fresh suit unless the court is absolutely satisfied that the failure of the plaintiff was due to certain which were not known to him at the time of the institution or the trial of the suit. Although an order under O. 23 Rule I, granting permission to withdraw suit with liberty to bring fresh suit without stating the formal defects either in the order or the application on which the order is based or both, is not one which can be supported as it is vitiated by material irregularity." 12. In the instant suit the plaintiff had sent by post application for mutation which was found afterwards to have been registered after the institution of the suit, therefore, the suit was liable to be thrown due to bar of Section 34(5) of the U.P. Land Revenue Act. This was certainly a formal defect due to registration of the application after the institution of the suit although it appears that the application was sent by registered post prior to the institution of the suit and for want of application for mutation being registered before instituting the suit the bar of Section 34(5) of the U.P. Land Revenue Act was attracted. In such circumstances application to withdrawn the suit with permission to file a fresh suit normally should be granted by the trial court because the suit is barred by a provision of law ans the plaint is liable to be rejected under order VII Rule 11(d) of the C.P.C. and is not liable to be dismissed which will not amount to a bar for bringing a fresh suit. 13. The defect of non-registration of the mutation application before the suit was instituted and its registration actually being after the suit was instituted which cannot be said due to fault and negligence of the plaintiff, being known to him from before instituting the suit. It can be beyond his control and he cannot be said not to have bonafidely believed that application for mutation was actually moved by him before instituting the suit. 14. It can be beyond his control and he cannot be said not to have bonafidely believed that application for mutation was actually moved by him before instituting the suit. 14. Thus the circumstances that application for mutation moved by post before institution of the suit have been registered after the institution of the suit, which fact came to light after institution of the suit are squarely governed by phrase 'formal defect' due to which the suit must fail and in any case is covered by "sufficient ground" and is certainly analogous to some formal defect mentioned in clause (a) of sub-rule (3) of Order 23 Rule 1 of the C.P.C. The said rulings relied upon on behalf of the Opposite Parties not applicable at all to the facts of the present case. 15. It has been held in A.I.R. 1926 Calcutta page 233 (supra) as follows:- "Where the plaintiff does not desire to withdraw from the suit unless liberty to being a fresh suit is granted and the court considers that such liberty should not be granted the proper course is simply to dismiss the application." 16. It has been held in A.I.R. 1970 Allahabad page 382 (supra) as follows:- "Permission to withdraw and file a fresh proceeding sought. Formal defect stated to be the reasons. Court permitting withdrawal but refusing the permission to file a fresh proceeding. Prayer in the application could not be split. The court could either accept the application or reject in toto." 17. It has been held in A.I.R. 1971 Madras page 477 (supra) as follows:- "On the plaintiff's application for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action the Court cannot direct the withdrawal of the suit without giving the liberty sought for. If the court disallows the liberty sought for it should dismiss the application and allow the suit to proceed." 18. In the present case the application for the plaintiff-applicant was with a compact prayer of allowing him to withdraw the suit with permission to file a fresh suit. The compact prayer was liable to be allowed as a whole or was liable to be rejected as a whole. The trial court acted illegally in allowing one part of the prayer and in rejecting the other part of the prayer in view of the aforesaid decisions on the question. 19. The compact prayer was liable to be allowed as a whole or was liable to be rejected as a whole. The trial court acted illegally in allowing one part of the prayer and in rejecting the other part of the prayer in view of the aforesaid decisions on the question. 19. In view of the matter regarding both the aspects discussed above, this revision application is liable to be allowed and the orders passed by both the courts below are liable to be modified and the application of the plaintiff for withdrawing the suit with permission to file fresh suit is liable to be granted subject to payment of costs of the litigation although plus 100/- before filing the suit afresh. 20. In view of the above, this revision application is allowed and the orders passed by both the courts below are modified and the application of the plaintiff for withdrawing the suit with permission to file a fresh suit is allowed in toto, subject to payment of the costs of the litigation although plus Rs. 100/- before filing the suit afresh and if the fresh suit is not filed within one year or earlier the costs of litigation although and Rs. 100/- shall be liable to be realised in execution.