JUDGMENT - Dr. PRATIBHA UPASANI, J.:---This writ petition is filed by the petitioners/original defendant Nos. 1 and 2, being aggrieved by the order dated 29th November, 1986 passed by the VI Additional District Judge, Pune, below Exhibit 15 in Regular Civil Appeal No. 320 of 1982. By the impugned order, the learned VI Additional District Judge, Pune allowed the said application of the original plaintiffs/present respondent Nos. 1 and 2, and granted permission to them to withdraw the suit under Order XXIII, Rule 1 of the Civil Procedure Code, 1908, during the pendency of the Appeal with liberty to institute fresh suit in respect of the subject matter on the same cause of action. 2. Few facts which are required to be stated to appreciate the controversy, are as follows: Present respondent Nos. 1 and 2 namely Laxman Sahebrao More and Gorakh Sahebrao More filed Regular Civil Suit No. 257 of 1977 for partition and possession, in which, present petitioners were original defendant Nos. 1 and 2. The contention of the original plaintiffs was that lands namely Gat Nos. 120, 119, 199 and 277, all situated at Post Sonawadi, Taluka Baramati, District Pune, were ancestral property of the plaintiffs and defendants, in which, the present respondent Nos. 1 and 2 had share. 3. This suit came to be resisted by the present plaintiffs/original defendant Nos. 1 and 2. The case of the petitioners was that suit lands mentioned in Paras 1, B, C and D in the plaint were the ancestral properties of themselves and respondent Nos. 1 and 2, and that, the same were already partitioned, in between them. The petitioners specifically contended that they and respondents were in separate Vahivat of their respective shares in the land Gat Nos. 119, 199 and 277, and that the 7/12 Extracts also showed the same position. The petitioners further contended that as far as land Gat No. 120 was concerned, their grandmother Gunabai inherited 9 acres and 33 gunthas of land from her father. It was their further contention that the said 9 acres and 33 gunthas of land was merged in land Gat No 120, during implementation of the Consolidation Scheme. The petitioners therefore contended that 9 acres and 33 gunthas land, out of Gat No. 120 was not an ancestral land, and therefore, the respondents had no right, title or interest in those 9 acres 33 gunthas. 4. The petitioners therefore contended that 9 acres and 33 gunthas land, out of Gat No. 120 was not an ancestral land, and therefore, the respondents had no right, title or interest in those 9 acres 33 gunthas. 4. The learned Joint Civil Judge, Junior Division, Baramati, after recording evidence, and hearing both the sides, dismissed the plaintiffs' suit. He gave a specific finding that the plaintiffs/respondents herein, had failed to prove that all the land in Gat No. 120 belonged to the joint family property, and that, the plaintiffs had any right to 9 acres and 33 gunthas of land, out of Gat No. 120. The Lower Court further held that the petitioners herein/original respondents had proved that there was a previous partition according to which, the suit lands were actually divided by metes and bounds. The lower Court further held that since 9 acres and 33 gunthas was not ancestral property, respondent Nos. 1 and 2 had no right in the same. Observing this, the Lower Court dismissed the suit by his judgment and Order dated 31st April, 1984. 5. Being aggrieved and dissatisfied by the judgment and Order given by the Joint Civil Judge, Junior Division, Baramati, the present respondents/original plaintiffs preferred Regular Civil Appeal No. 320 of 1984 in the Court of the District Judge, Pune, and the said Appeal is still pending. During the pendency of this appeal, an application (Exhibit 15) was filed on or about 30th October, 1986 i.e. ten years after the filing of the suit and about two and a half years, after filing of the appeal, praying for withdrawal of the suit under Order XXIII, Rule 1 of the Civil Procedure Code, 1908. It was averred by the appellants that there was a formal defect in the pleadings of the plaintiffs, in as much as, it was not mentioned in the plaint that the land of Gunabai was blended in the joint family property of her husband Anantrao, and through inadvertence, it was not pleaded that due to blending of Gunabai's land with the joint family land of Anantrao, the land became joint family property of all the parties. It was averred by the appellants that there was a 'formal defect' in the suit and there were other sufficient reasons for allowing the defendants to withdraw the suit, and hence, they be permitted to withdraw the suit with permission to file fresh suit on the same cause of action. The above mentioned application Exhibit 15 came to be granted by the learned VI Additional District Judge, Pune, by his impugned order dated 29th November, 1986. It is against this order that the present writ petition has been filed by the petitioners/original defendant Nos. 1 and 2. 6. It is the contention of the petitioners that the application for withdrawal of the suit, at the appellate stage, when the Lower Court had given a finding completely in their favour on merits, it was not proper for the learned VI Additional District Judge, to grant the said application. According to them, the said application is not only made at the belated stage, considering the chronology of events, but that, it was also mala fide and was made with ulterior motive. It is also their contention that the said application was made to fill-up the lacunas and to make out a fresh case, as an afterthought to wipe out the advantage which the petitioners have got, because of the dismissal of the plaintiffs' suit against them. It is therefore prayed that the said order be set aside and quashed, as it is contrary to the principles of law, justice, equity and good conscience. 7. Ms. Mutalik, appearing for the petitioners drew attention of the Court to Application Exhibit 15 and pointed out that just a bear statement was made in that application that there was a formal defect in the suit, so also, a general statement was made that there were sufficient reasons for allowing the appellants to withdraw the suit. 8. The learned Joint Civil Judge, Junior Division, Baramati, had dismissed the suit of the plaintiffs/respondents on merits by giving a specific and categorical finding that the plaintiffs had failed to prove that land of 8 Hectares and 5 gunthas comprised in Gat No. 120 was the joint family property and on the other hand, the defendants had proved that there was a previous partition as alleged by them. Ms. Ms. Mutalik for petitioners submitted that when there was such a categorical finding, negativing the plaintiffs' claim to the suit properties, it was erroneous on the part of the learned VI Additional District Judge, to allow the application for withdrawal of the plaintiffs/present respondents to withdraw the suit under the provisions of Order XXIII, Rule 1 of Civil Procedure Code, 1908. 9. I have heard Ms. Mutalik, appearing for petitioners for quite some time. I have also perused the proceedings, and I find force in the submissions of Ms. Mutalik. Order XXIII, Rule 1 of Civil Procedure Code, 1908 deals with the withdrawal of suit or abandonment of part of claim. Clause (3) of Rule 1 of Order XXIII states as follows: ORDER XXIII : WITHDRAWAL AND ADJUSTMENT OF SUITS "1. Withdrawal of suit or abandonment of part of claim (1) .................................................... (2) .................................................... (3) : 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 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. (4) ................................................... (5) ..................................................." 10. In the present case at hand, the contention of the original plaintiffs in the said application was that there was a 'formal defect' in their pleadings in as much as through inadvertence they did not plead that the land of Gunabai was blended in the joint family property and due to this blending, the said land became the joint family property of both the parties. Now, this cannot be called a formal defect. The Lower Court had on merits, dismissed the plaintiffs' suit, by giving a categorical finding in favour of the defendants and against the plaintiffs. By these findings which were given by the Lower Court in favour of the defendants, a right has accrued in favour of them. It is therefore not permissible now to deprive them of the advantage which they have got, because of the favourable findings given by the Lower Court. By these findings which were given by the Lower Court in favour of the defendants, a right has accrued in favour of them. It is therefore not permissible now to deprive them of the advantage which they have got, because of the favourable findings given by the Lower Court. The plaintiff-appellant is not entitled as a matter of right, to withdraw his suit, and he will not be permitted to do so if the effect of allowing him to withdraw it, would be to deprive the defendants of the benefit of the Lower Court's adjudication in his favour. 11. In fact, what the plaintiffs call a "formal defect" cannot be called a formal defect at all. The expression "formal defect" cannotes defences of various kinds not affecting the merits of the case. Ms. Mutalik for petitioners relied upon A.I.R. 1940 Bom. 121 (Ramrao v. Babu Appanna, (F.B.))1 where the Full Bench has analysed the words 'formal defect' as appearing in Order XXIII, Rule 1(3) of the Civil Procedure Code, 1908, and it is held that words "formal defect" in Rule 1 sub-clause (3) of Order XXIII of Civil Procedure Code, 1908, mean defects which do not affect merits of case whether that defect is fatal to suit or not. The Full Bench has further explained that the expression "formal defect" in Rule 1(3)(a) must be given a wide and liberal meaning and must be deemed to cannote every kind of defect which does not affect the merits of the case, Whether that defect be fatal to the suit or not. 12. Indeed, "formal defect" includes instances like misjoinder of parties or of the matters in suit, rejection of a material document for not having a proper stamp and the erroneous valuation of the subject-matter of the suit. That is not the case in the present matter. Here, the respondents/original plaintiffs want to deprive the defendants/petitioners herein of the advantage, which they have gained by obtaining a favourable judgment from the Lower Court. This cannot, by any stretch of imagination, be called a "formal defect". This is an afterthought of the plaintiffs to deprive the defendants of the interest which had accrued to them. What the plaintiffs want is nullifying the effect of the dismissal of their suit. This cannot be permitted. 13. This cannot, by any stretch of imagination, be called a "formal defect". This is an afterthought of the plaintiffs to deprive the defendants of the interest which had accrued to them. What the plaintiffs want is nullifying the effect of the dismissal of their suit. This cannot be permitted. 13. A Court of Appeal, of course has power, in a proper case, to grant permission to withdraw a suit with liberty to file a fresh suit. Needless to say, that this power has to be exercised very cautiously by the Court of Appeal. In the present case at hand, in my opinion, the Appeal Court has failed to exercise its judicial discretion and the order has to be set-aside and quashed. Hence, the following order: Writ Petition No. 852 of 1987 is allowed. Rule made absolute in terms of prayer clause (b). Interim order dated 12th February, 1987 is hereby vacated. Writ to go down immediately. Petition allowed.