N. Y. HANUMANTHAPPA, J. ( 1 ) IN this civil revision petition defendant/petitioner is challenging the order passed by the trial court on i. a. no. 14 filed under order 23, rule 1, cpc in o. s. no. 64 of 1980 on the file of the ii munsiff, and j. m. f. c. , mysore, seeking for permission to withdraw the suit with liberty to file a fresh suit in future for the reasons stated in the affidavit filed in support of the said i. a. no. 14. ( 2 ) A few facts which are necessary to dispose of this revision petition are that onejavaregouda was the owner of the suit land. On 2-7-1947, javaregouda entered into an agreement to sell the property measuring 7 acres 25 guntas to one Mr. Peersab for a sum of Rs. 200/- on a contingent contract, that peersab should reconvey the property of 5 acres 25 guntas out of total extent of land to javaregouda when it becomes wet. ( 3 ) IN the year 1980, javaregouda filed a suit against the sons of peersab on thebasis of the agreement dated 2-7-1947, for relief of specific performance that defendants should execute a sale deed in respect of 5 acres 25 guntas of wet land for Rs. 200/- and on their failure, court should get the sale deed registered in his favour. The same was opposed by the defendants. It was contended that they are not liable to execute the sale deed disputing the very agreement dated 2-7-1947. It was also contended that there is no cause of action for filing the suit. ( 4 ) ON the basis of the pleadings, the trial court framed the following issues:1) whether the plaintiff proves that the defendants father had entered into an agreement of sale dated 2-7-1947 as alleged in the plaint? 2) whether the defendants prove that the alleged agreement is void and unenforceable? 3) whether the plaintiff is entitled to the relief as prayed for? 4) what decree or order? ( 5 ) IN support of the rival contentions both the parties led evidence. 2) whether the defendants prove that the alleged agreement is void and unenforceable? 3) whether the plaintiff is entitled to the relief as prayed for? 4) what decree or order? ( 5 ) IN support of the rival contentions both the parties led evidence. Oncompletion of evidence of p. w. 2, legal representatives of plaintiff, filed an application under order 23, rule 1 of cpc requesting the court to permit them to withdraw the suit with liberty to file a fresh suit in future on the ground that originally their father javaregouda filed a suilbclieving that the land in question had become wet. The original plaintiff javaregouda having died during the pendency of the suit his sons came on record as legal representatives. Subsequently on examining the concerned officer they found that the land in question has not become wet. Thus no cause of action has yet arisen. The relevant observations in the order of the trial court read as under:". . . . . HE has stated on oath before the court that no map in respect of distributory canal has been prepared and further, he has stated that he cannot say when the suit land would become wet or not. In the light of the above fact, it is felt that the suit is premature and as such, the suit is not sustainable at present. Hence, the application and prayed to allow the same. " the said application was opposed by the defendants contending that such an application is not maintainable. The suit itself based on a contingent contract is unenforceable in law. The plaintiffs had ample opportunity to withdraw the suit or to prosecute the suit as the suit was filed in the year 1980. When it lied over since 1989, now plaintiffs are estopped from contending that cause of action has not yet arisen and therefore they are entitled to withdraw the suit with liberty to file a fresh suit. It was also contended that since 1980, a right has been accrued to the defendants, which cannot be taken away by permitting the plaintiffs to withdraw the suit. The trial court heard both sides on the said application. As far as la. It was also contended that since 1980, a right has been accrued to the defendants, which cannot be taken away by permitting the plaintiffs to withdraw the suit. The trial court heard both sides on the said application. As far as la. No. 14 is concerned, whatever stated in the plaint was reiterated, whereas defendants in support of their contentions, placed reliance on the principles laid down by the High Court of Madras and allahabad in the following decisions namely: (i) AIR 1950 (37) allahabad 489, wherein it is held thus: " (a) civil p. c. , 1908, order 23, rule 1 (2) formal defect meaning defect going to root of plaintiff's claim not formal defect. " (ii) 1968 (11) Madras law journal 367, wherein it is held thus:"where after an appreciable portion of the material evidence has been adduced the plaintiff finds that the evidence is insufficient to establish the case propounded by hint in the plaint it will be contrary to the letter as well as the spirit of sub-rule (2) of order 23, rule 1 of the Code of Civil Procedure to pennit the plaintiff to institute a fresh suit on the same cause of action. " (iii) AIR 1983 Madras 160, wherein it is held thus: "that inability of the plaintiff to adduce proper and necessary evidence before court to prove his case cannot be a sufficient ground for withdrawing the case. "the trial court took into consideration the contents of sale deed dated 2-7-1947 executed by javaregouda as also the evidence of p. w. 2, a junior engineer who deposed that the suit land has not become wet land and held that there are sufficient grounds to allow the application under order 23, rule 1 and accordingly allowed the said application, by its order dated 19-3-1990. The said order is now under challenge in this revision petition. The said order is now under challenge in this revision petition. Sri raghupathy, learned counsel for the petitioner, submits that (1) the order passed by the trial court is quite arbitrary and illegal; (2) the trial court erred in not noticing that grant of permission to withdraw the suit will arise only when the defect pointed out is a formal in nature and not a substantial one; (3) in the instant case when plaintiffs came to know the weakness in their evidence, in order to make good the same they made an application to withdraw the suit with liberty to file a fresh suit; under the said circumstances, trial court should not have granted permission, for the reason that by granting such a permission, it facilitated the plaintiffs to cover up the laches in the evidence pointed out; court can exercise jurisdiction under order 23, rule 1 of cpc, only when sufficient grounds are made out and not otherwise; when suit itself is not maintainable; that too when the suits pending for a period of nearly 9 years, it is not proper on the pan of the trial court to grant such relief, as the same will result in disturbing the rights accrued to the defendants during the period of 9 years. He placed reliance on the decision referred to above in addition to the decision of the Supreme Court in the case of sarguja transport service v gwalior and others, AIR 1987 SC 88 wherein it is held:". . . . . . . WITHDRAWAL of petition under Article 226 without permission to institute fresh petition fresh petition under Article 226 in respect of same cause of action is not maintainable rule of public policy as contained in order 23, rule 1 of civil procedure code applies to such case exception is habeas corpus petition. " for these reasons, he submits that the petition be allowed. In answer to these contentions shri shivappa, learned counsel for the respondents, submits that (1) there is no merit in any one of the contentions raised by Sri raghupathy; (2) the trial court took into consideration legal effect of the documents and scope of order 23, rule 1 of cpc including the grounds made out in i. a. no. In answer to these contentions shri shivappa, learned counsel for the respondents, submits that (1) there is no merit in any one of the contentions raised by Sri raghupathy; (2) the trial court took into consideration legal effect of the documents and scope of order 23, rule 1 of cpc including the grounds made out in i. a. no. 14 and then granted relief; (3) the ground made out for withdrawal of the suit is not to cover up laches in the evidence of the plaintiff; but was based on a contingent contract and the event that was contemplated had not occurred when the suit was filed or even at the time of leading evidence i. e. , the land in question becoming wet; as such the plaintiffs reasonably felt that no cause of action either on the date of filing the suit or on the date of filing application i. a. no. 14 had arisen; thus, he submits that the plaintiff is justified in seeking for relief. Further, be submits that the defect pointed out is a formal one and not a substantial one, that the decision relied upon by Sri raghupathy, has no application to the facts of the case. He supports the reasoning given by the trial court on this aspect also. In support of his contentions he also placed reliance on the following decisions of this court: (1) basappa tippanna durgannavar v bhimappa ramappa durgannavar and another, 1968 mys. L. j. 355, wherein it is held as follows: 'the words 'sufficient grounds' occurring in order 23, rule l (2) (b), cpc, should be read independently of the words 'formal defect' occurring in clause (a ). The meaning to be given to the words should not be limited to the grounds afforded by defects which are analogous to formal defects referred to in clause (a ). "2) l. Shivakumaraswamy v h. Lingappa and others, 1992 (1) Kar. L j. 285. Wherein it is held as follows:" (A) civil procedure code, 1908, order 23, Rules 1 (3) and (5) and 3 partition suitapplication seeking leave to withdraw suit with liberty to file a fresh suit on same cause of action court's order granting leave to withdraw suit, but declining permission of file fresh suit unsustainable. "3) atul krushnaroy v raukishore mohanty andothers, AIR 1956 orissa 77. "3) atul krushnaroy v raukishore mohanty andothers, AIR 1956 orissa 77. "a formal defect is a defect of form which is prescribed by Rules of procedure such as misjoinder of parties, of causes of action, non-payment of proper court-fee, failure to disclose cause of action and so forth. " for the above reasons he submits that the petition be dismissed. After hearing both side and giving my careful consideration to the decisions relied upon by both sides and also going through the records I am of the view that the trial court was justified in granting relief sought for by the plaintiff. It is true that the relied under order 23, rule 1, cpc, can be granted only when the defect pointed out is a formal one and not a substantial one. It is also true that such relief cannot be granted in order to fill up the gap and cover up the laches. Order 23, rule 1, cpc reads as under: " (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 where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 or order xxxii extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court" therefore, the object of order 23, rule 1, cpc is interpreted by various courts is that the rule is not to allow a plaintiff with an opportunity of commencing the trial afresh after he has failed to conduct the suit, with care and diligence and substantiate his case by evidence, but to prevent the technical defects in rendering justice. As far as the law laid down by the Supreme Court and also that of the high courts of Madras and allahabad is concerned, there cannot be a second say, as they dealt with what a re the sufficient grounds, failed to grant relief, for the reasons stated therein. In the instant case, the cause of action in the suit arose on the basis of an agreement dated 2-7-1947 wherein it is said that on land becoming wet 5 acres 25 guntas should be reconveyed to the plaintiff by receiving Rs. 200/- as consideration. In the instant case, the cause of action in the suit arose on the basis of an agreement dated 2-7-1947 wherein it is said that on land becoming wet 5 acres 25 guntas should be reconveyed to the plaintiff by receiving Rs. 200/- as consideration. The legal representatives of plaintiff later at the time of examining p. w. 2, an engineer found that land had not yet become wet as on the date of examining him. As such they thought that cause of action was yet to arise. Whether seeking for withdrawal of a suit with a liberty to file a fresh suit as cause of action not arisen is a formal defector a substantial one has been explained by the High Court of orissa as a formal one, in the case of atul krushna roy v raukishore mohanty and others, AIR 1956 orissa 77, the relevant portion of which reads as under: (3) my attention was drawn to the case of watson and co. V collector of zilla rajashahye, 12 moo ind. App. 160 (pc) (b), in which the privy council referred to a few circumstances which would come under the category of a 'formal defect' so as to non-suit a plaintiff. Those grounds are limited to case of misjoinder either of parties or of the matters in contest in the suit, to cases in which a material document has been rejected, and to cases in which there has been an erroneous valuation of the subject-matter of the suit. Their lordships said: "in All those cases the suit falls by reason of some defect of form. But their lordships are aware of no case in which, upon an issue joined and the party having failed to produce evidence which he was bound to produce in support of that issue, liberty had been given to him to bring a second suit. " in that case, however, no reference was made to the provisions of the civil procedure code of 1859. It should be remembered that the provisions of order 23, rule 1 have now been specifically enacted in order to remove any possible doubt as to the meaning of the words 'formal defect'. " in that case, however, no reference was made to the provisions of the civil procedure code of 1859. It should be remembered that the provisions of order 23, rule 1 have now been specifically enacted in order to remove any possible doubt as to the meaning of the words 'formal defect'. I am inclined to think that the legislature, in the two sub-rules, intended that the "other sufficient grounds" occurring in clause (b) need not be of a formal character like the ones mentioned in the privy council case cited above. In my opinion a formal defect is a defect of form which is preceded by Rules of procedures such as misjoinder of parties, of causes of action, non-payment of proper court-fees, failure to disclose cause of action and so forth. All these details must be mentioned in the plaint under the Rules of procedure, but there may also be other sufficient grounds which would render the suit liable to be dismisses by reason of a defect or defects which may not necessarily be of a formal character such as those enumerated above. It is to cover cases of this type that the legislature has thought it necessary to empower the court to use its discretion so as to enable the plaintiff to withdraw his suit and file a fresh one. " (4) it may be seen that the word "other" before "sufficient grounds" is capable of the interpretation "other than a formal defect". As at present advised therefore, I am inclined to the view that the expression "other sufficient grounds" need not necessarily be restricted to defects of a formal character and that the words are wide enough to embrace other defects as well. "it is true that if a case is withdrawn in which the parties have already entered the witness box and evidence is in progress, a little hardship will be caused to the parties. But the delay in seeking withdrawal of the suit is not a ground to refuse the withdrawal because the ultimate aim of the court in to see substantial justice is rendered even if some inconvenience is caused. In fact High Court of Allahabad in the case of kamta and another v gayaprasad and others, AIR 1972 Allahabad 143 took the view that the delay is not a ground to refuse permission to withdraw the suit. In fact High Court of Allahabad in the case of kamta and another v gayaprasad and others, AIR 1972 Allahabad 143 took the view that the delay is not a ground to refuse permission to withdraw the suit. In the said case it granted relief at an appellate stage. The relevant portion of that decision reads as under:"it appears to me that sub-rule (1) of order 23, civil procedure code, confers an unqualified right on the plaintiff to withdraw the suit at any time. Since an appeal is continuation of'the suit, the right of the plaintiff to withdraw from the suit inheres even at the appellate stage. On the language of sub-rule (1) it is difficult to held that the plaintiff had only a qualified right to withdraw from the suit. The Supreme Court m the case of hulas raj v k. b. bass and co. , AIR 1968 SC 111 , observed as follows: "the language of order 23, rule 1, sub-rule (1) of civil procedure code gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-rule (2) of that rule, the plaintiff becomes liable for such costs as the court may award and becomes precluded from instituting any firesh suit in respect of that subject-matter under sub-rule (3) of that rule. There is ao provision in the Code of Civil Procedure which requires the court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. . . . . "apart from this, defendants contention that the right accrued to them has been taken away by virtue of allowing i. a. 14 also cannot be accepted as in case the legal representatives of the plaintiff institute a fresh suit, defendants will be at liberty to take a proper defence including the rights if any accrued to them during this interval and if such a defence is taken the court shall deal with it. Hence the order of the trial court permitting the legal representatives of plaintiff to institute a fresh suit is a just one. There is no ground to interfere with the order impugned. Petition dismissed. --- *** --- .