Judgment : Since the issue involved in all the civil revision petitions are common, they are being dealt with by way of common order. 2. The respondents herein filed different suits against the petitioner herein in respect of different properties seeking a decree for injunction. The trial court dismissed all the suits. Aggrieved by the same the respondent filed appeals A.S. Nos. 132 of 137 of 1990 on the file of the Sub Court, Tuticorin. While these appeals were pending, the respondents herein filed I.A. Nos.268 of 173 in A.S. No. 137 of 1990 respectively seeking permission to withdraw the suit with liberty to file a fresh suit on the ground that the petitioner herein had filed another suit O.S. No.54 of 1990 against the Government for declaration and injunction and since the respondents did not expect that the petitioner herein would divest their ownership in respect of the suit properties, he did not ask for declaration and hence the suits have been filed only for bare injunction. Now in order to file a comprehensive suit, it is necessary that the present suits have to be withdrawn and permission is to be granted to file a fresh suit on the same cause of action. 3. The lower appellate court by its order dated 30.9.1993 allowed these applications filed by the respondents herein. As against the said orders, these revisions have been filed by the petitioner. 4. Mr.Peppin Fernando, learned counsel for the petitioner contended that the respondents had suffered a decree after the full-fledged trial and the suits filed by them have been dismissed. Now appeals are pending and the relief sought for by the respondents is one for bare injunction. Now the respondents seek to withdraw the suits on the ground that the petitioner had filed another suit O.S. No.54 of 1990 and the same is pending and in order to establish his title to the suit property by raising necessary pleas. The lower appellate court also allowed the respondents to withdraw the suits with liberty to file a fresh suit. The suit filed by the petitioner in O.S. No.54 of 1990 had already been disposed of and as such, if at all the respondents want to agitate their right have to file a separate suit for declaration of title and for which there is no need to seek permission to file fresh suit. The suit filed by the petitioner in O.S. No.54 of 1990 had already been disposed of and as such, if at all the respondents want to agitate their right have to file a separate suit for declaration of title and for which there is no need to seek permission to file fresh suit. He also contended that the plaintiffs can be permitted to withdraw the suit only if the court is satisfied regarding the requirements of O.23, Rule 1(3) of C.P.C. In this case, the requirements of O.23, Rule 1(3) has not been satisfied and as such, the lower appellate court is not correct in allowing the applications filed by the respondents. 5. On the contrary, Mr.R.S.Ramanathan, learned Counsel for respondents contended that only in case where any vested right had accrued in favour of the petitioner by virtue of the decree of the trial court, then only the respondents cannot be permitted to withdraw the suit with liberty to file a fresh suit. In this case the decree is only for bare injunction and as such it cannot be said that any right had been accrued in favour of the petitioner. Hence the order of the lower appellate court is perfectly in order. 6. It may be worthwhile to refer some of the judgments relied upon by the Counsel for the petitioner. In 5. Charles Samuel (Died) and others v. Board of Trustees, Devaswom Board Office, Suchindram, (1978)2 M.L.J. 243 , the learned Judge of this Court has observed at page 245 as follows: “Learned counsel for the plaintiff says that there are cases in the books which show that a suit can be withdrawn even at the appellate stage. It seems to me, however, that even at the appellate stage, the way must be clear for the plaintiff to withdraw his suit without prejudicially affecting the position of the other parties to the litigation. I can very well visualise a situation where the plaintiff succeeds in the trial Court in obtaining a decree and in the appeal against his decree by the defendant the plaintiff might wish to withdraw the suit, foregoing the decree on hand in his favour. I can very well visualise a situation where the plaintiff succeeds in the trial Court in obtaining a decree and in the appeal against his decree by the defendant the plaintiff might wish to withdraw the suit, foregoing the decree on hand in his favour. If such a situation could be visualised, a withdrawal of the suit at the appeal stage, although it may amount to withdrawal or nullification of the trial court’s decree also, might still not hurt any party other than the withdrawing plaintiff, excepting on the question of costs, for which the court may make suitable provision or reservation in the order granting leave to withdraw. But the position in the present case is entirely different. Here is a case where the defendant Devaswom had obtained a decree for dismissal of the suit. The dismissal of the suit, is no doubt, under contest in the second appeal filed by the plaintiff. But the question is about the withdrawal of the suit itself. If the plaintiff at this stage is allowed by this Court to withdraw his suit, that would have the effect of setting aside the decree under appeal. The plaintiff’s aim of which, he has made no secret, is to withdraw this suit so that he may get over the objection of want of suit notice, a ground of defence on which the Devaswom has succeeded in getting the present suit dismissed. It seems to be clear that to allow the plaintiff to withdraw the suit in those circumstances, would not only destroy the existing decree in the defendant’s favour, but it would also effectively obliterate the presently available ground of defence on which the Devaswom has succeeded and has a right to succeed. I must, therefore, hold that the privilege of applying for withdrawal of suit under O.23, Rule 1(2) should be held to be unavailable to the plaintiff.” 7. In R.Thiagarajan v. Meenakshi Ammal, (1996)2 C.T.C. 127 , it is held that in accordance with 0.23, Rule 1(3), the plaintiff can be permitted to withdraw the suit only where the suit must fail by reason of some formal defect. It is further observed as follows: “In such a situation, as rightly pointed out by the learned Counsel for the petitioner, there is no case at all for invoking 0.23, Rule 1 (3) of the Code of Civil Procedure. It is further observed as follows: “In such a situation, as rightly pointed out by the learned Counsel for the petitioner, there is no case at all for invoking 0.23, Rule 1 (3) of the Code of Civil Procedure. The said rule says: ”Where 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, it may, on such terms as it thinks fit, grant the palintiff permission to withdraw from such suit... with liberty to institute a fresh suit in respect of the subject matter of a such suit.“ It is clear to me that there is no formal defect involved at all in the present case. If really the plaintiff wanted to further amend the plaint, even after the abovesaid I.A. No. 16657 of 1990 he could have filed immediately after the abovesaid LA. No. 16657 of 1990 was filed necessary application for amending the plaint without doing so, only in 1995, the present LA. is filed. O.23, Rule 1 (3) of the Code of Civil Procedure cannot be invoked unless the suit must fail by reason of some formal defect. No doubt, in clause (b) of the said Rule 3, it is mentioned that even for sufficient grounds similar relief could be granted. But even then the term” sufficient grounds “ have been interpreted to mean grounds skin to the earlier mentioned ground of formal defect. At any rate, the claim made in the I.A., cannot at all be a sufficient ground for invoking O.23, Rule 1(3) of the Code. The plaintiff could have very well filed an I, A. seeking amendment of the plaint. Without filing an application for amendment of the plaint, (if really any new amendment is necessary) he cannot in the above circumstances invoke 0.23, Rule 1(3) of the Code.” 8. The plaintiff could have very well filed an I, A. seeking amendment of the plaint. Without filing an application for amendment of the plaint, (if really any new amendment is necessary) he cannot in the above circumstances invoke 0.23, Rule 1(3) of the Code.” 8. Yet another judgment reported in Bahurudeen and another v. Anthony and others, (1992)2 M.L.J. 563 , wherein, the learned Judge had dealt with elaborately this aspect and ultimately held as follows: "An analysis of the above judgments shows that it has been generally accepted by the courts that permission to withdraw a suit with liberty to file a fresh suit can be granted if the suit has to fail by reason of a formal defect or a ground analogous thereto. But, courts are uniform in holding that a plaintiff who has failed to establish his case on merits, is not entitled to as right to withdraw the suit and file a fresh suit. On a reading of the two clauses in Sub-rule (3) of 0.23, Rule 1 of the Code of Civil Procedure, it is clear that the legislature has advisedly used a distinctly different language. While Clause (a) refers to the pending suit which must fail by reason of some formal defect, Clause (b) refers to the suit it is instituted with the leave of the court. If a matter falls under Clause (a), the court is concerned only with the question whether the suit must fail by reason of a formal defect. On the other hand, if clause (b) is invoked by a party, then the court must address itself to the question, whether there are sufficient grounds for allowing the party to institute a fresh suit for the same subject matter or part thereof. Hence, in my view, it is not correct to say that sufficient grounds should be read ejusdem generis with ‘formal defect’ or that they should be analogous thereto." Sufficient grounds’ would cover a wider field and not restricted to a ‘formal defect’ or a similar defect. However, when the question arises before an appellate court after the adjudication of the matter on merits by one court or two courts, the test will be whether the court is justified in depriving the defendant of the benefit of a finding rendered in his favour after a full trial. However, when the question arises before an appellate court after the adjudication of the matter on merits by one court or two courts, the test will be whether the court is justified in depriving the defendant of the benefit of a finding rendered in his favour after a full trial. It is well known that when a court grants leave to file a fresh suit on the identical cause of action, the withdrawn suit has no existence in the eye of law. It is not available for any purpose and the parties are relegated to the same position which they occupied before the suit was brought. Hence, the court has to consider in each case when an application is filed in the appellate stage for withdrawing the suit with liberty to file a fresh suit, whether the defendant should be driven back to original position in which he was prior to the filing of the suit, even though he has come out successful after a full trial." 9. In the present case, the averments made by the respondents in their affidavit is as follows: "The Government has classified it as Mayanam Poramboke and not as the property of respondent. The Government has issued ‘B’ memo to a number of persons who have occupied the portion of above 66 cents and they are in possession. Dispute regarding the place arise even in 1981 between the respondent and one of the occupant and the matter is still pending in appeal over execution proceedings. Further the respondent themselves have filed a suit O.S. No.54 of 1990 against the Government praying for declaration and injunction. The plaintiff was not aware of the above matter and suit was filed. The plaintiff also did not expect the respondent to defy the ownership of the Government and hence all the necessary pleading to establish the fact that the respondent has no right over the property were not raised. If all the relevant facts are not placed before this Hon’ble Court we will suffer. The applicant has to be permitted to withdraw the appeal and suit with liberty to file a fresh suit on the same cause of action alleging all relevant and necessary fact including the developments. If such a permission is not granted I will be put to irreparable loss." 10. The respondents had suffered a decree of dismissal of their suits for bare injunction. If such a permission is not granted I will be put to irreparable loss." 10. The respondents had suffered a decree of dismissal of their suits for bare injunction. Now their intention is the file a suit seeking for the relief of declaration of their title. It is always open to them to amend the plaint or to file a fresh suit for declaration of title. If once the permission is granted to the respondents for filing a fresh suit, then the decree of dismissal of the suits will stand set aside. By virtue of the decree, the petitioner has got a vested right since the finding of the trial court is that the petitioner herein is in physical possession of the suit properties and the respondents are not in possession of the same. By virtue of the said finding the petitioner’s possession is safeguarded and the respondents case that they are in possession and enjoyment is belied. Hence now the withdrawal is sought for not on the basis of the suit being dismissed on a formal defect but the suits are already disposed of on merits. Hence at this stage it may not be proper to permit the respondents to withdraw the suits with liberty to file a fresh suit on the same cause of action especially when the O.S. No.54 of 1990 filed by petitioner had also been disposed of. Hence, the order of the lower appellate court cannot be sustained and accordingly these civil revision petitions are allowed. However, there will be no order as to costs.