S.K. MAL LODHA, J.— This is a revision petition by the defendant under sec. 115, C.P.C. against the order dated December 16,1978, passed by the Additional Munsif, Bhilwara, by which he allowed the plaintiff-non-petitioners to withdraw the suit with permission to file a fresh suit. 2. The plaintiff-non-petitioners instituted a suit for ejectment against the tenant-petitioner on the ground of material alteration. The written statement was filed contesting the suit. When the case was fixed for final arguments, the plaintiff-non-petitioners submitted an application on November 11, 1978 praying that they may be permitted to withdraw the suit, for, the suit was in respect of the trust-property and all the trustees having not been joined as the plaintiffs, it suffers from the formal defect and, so, permission may be granted for bringing a fresh suit in respect of the same subject matter. The learned Additional Munsif by his order dated December 16, 1979, permitted the withdrawal of the suit with permission to file a fresh suit. Aggrieved, the defendant-petitioner has filed this revision. 3. I have heard Mr. N.P. Gupta, learned counsel for the petitioner, as nobody has appeared on behalf of the non-petitioners to oppose the revision. 4. Learned counsel has placed the copy of the withdrawal application dated November 11, 1978, for my perusal. It will be useful here to reproduce paras 1,2, and 3 of the application and also the prayer made therein. N.P. Gupta, learned counsel for the petitioner, as nobody has appeared on behalf of the non-petitioners to oppose the revision. 4. Learned counsel has placed the copy of the withdrawal application dated November 11, 1978, for my perusal. It will be useful here to reproduce paras 1,2, and 3 of the application and also the prayer made therein. They are as under:- 1- ;g fd mDr okn VªLV lEifr ds ckjs esa gS vkSj fdjk;snkj ds vk/kkj ij izfroknh ds fo:) nk;j gS vkSj oknhx.k esusftax VªLVh Fks vkSj esusftax VªLVh ds uke fdjk;k fpV~Bh fyf[k xbZ gS vkSj ml vk/kkj ij ;g nkok gSA 2- ;g fd nkok nk;j djus ckn ;g ekywe gqvk fd VªLV lEifr ds dCts ;k=h ds nkos esa ,d gh O;fDr us nkok fd;k gks rks Hkh VªLVh lEifr ds dCts oknh ds nkos esa lc gh VªLVh t:jh i{kdkj gS mlds vHkko esa nkok py ugha ldrk gSA vr% izkFkZuk gS fd mDr dkj.kksa ls oknh dks viuk okn i= mBkus o u;k okn i= isk djus dh btktr c{kkbZ tkos vkSj VªLVh lc gh ds vHkko esa VªLV lEifr ds nkos py ugha ldrs gS ;g ,d Qksjey fMQsDV gS lks blh okn gsrq u;k nkok izfroknh ds fo:) [kkyh djkus dk iqu% djus dh btktr c{kkos 11-11-78- A perusal of para 2 of the application, shows that it has been stated by the plaintiffs that as suit relates to possession of the trust-property, all the trustees are necessary parties and in their absence, the suit cannot proceed. 5. Mr. N.P. Gupta, learned counsel for the petitioner contended that the non-joinder of necessary parties in a suit is not a formal defect as envisaged by O. XXIII, r. 1, C.P.C. and that according to the averments made in the application, it is abundantly clear that necessary parties were not joined. The question that, therefore, arises is whether non-joinder of necessary parties is a formal defect within the meaning of O.XXIII, r. 1 C.P.C or not? A formal defect means a defect in form, which is prescribed by the rules of procedure and further that the defect which goes to the root of the plaintiffs plaint cannot be termed as a formal defect. A formal defect means a defect in form, which is prescribed by the rules of procedure and further that the defect which goes to the root of the plaintiffs plaint cannot be termed as a formal defect. It was held by Gajendragadkar, J., as he then was, in Tarachand v. Gaibihaji (1) that failure to make a proper claim and failure to implead parties in respect of the claim cannot be properly regarded as a formal defect, which is fatal to the suit within the meaning of O.XXIII, r. 1, C.P.C. in which Assian Assurance Co. Ltd. vs. Madholal (2) has been referred. A similar question arosa before a learned single Judge in Brahmanand vs. Prab-hati(3). In that case the plaintiff sought permission for withdrawing the suit with liberty to bring fresh suit on the same subject-matter as the defendant had raised, inter-alia, a plea that widow of His a necessary party. The learned Munsif in that case, held that this defect was not formal. The application was rejected. Against that, a revision was filed in the High Court. The learned Judge observed as under:- "Omission to implead necessary party cannot be regarded as a formal defect. Such a defect is fatal to the suit. Learned counsel for the petitioner was not able to point out any other sufficient ground which may justify permission to the petitioner to withdraw the suit with liberty to bring fresh suit." Learned Judge, therefore, came to the conclusion that the case was not covered by cl. (2) of r. 1, of O.XXIII, C.P.C. I respectfully agree with the view taken in Tarachands case(l) and Brahamanands case (3). The plaintiff, under O. XXIII, r. 1. C.P.C , can withdraw a suit as a matter of right. This, however, precludes him from suing again on the same subject-matter. According to Cl. (2) of r. 1 of O.XXIII, C.P.C., where a court is satisfied that the suit must fail by reason of some formal defect and 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. In this case, as found by me above that the non-joinder of the trustees, which according to the plaintiff-non-petitioners, are necessary parties, is not a formal defect and no permission could be granted by the learned Additional Munsif to the plaintiffs to withdraw the suit with a liberty to file a fresh suit. The conditions laid down in O. XXIII, r. 1, C.P.C. are not satisfied. 6. It may be stated here that the order under revision does not contain any reasons whatsoever. The learned Additional Munsif does not seem to have applied his mind to the provisions contained in O. XXIII, r. 1, C.P.C. As the learned Additional Munsif has ordered the suit to be withdrawn with leave to file fresh suit without giving any reasons, he has acted with material irregularity in exercise of his jurisdiction. 7. For the aforesaid reasons, the order dated December 16, 1978, allowing withdrawal of the suit with permission to file a fresh suit, cannot be sustained. 8. The result is that I allow the revision and set aside the order dated December 16,1979, and dismiss the application for withdrawal of the suit. The learned Additional Munsif will proceed with the trial of the suit in accordance with law. 9. There will be no order as to costs of the revision petition. 10. An after word. This order will not preclude the plaintiff-non-petitioners, if it is permissible in law, to add trustees as parties, if they so like.