ORDER 1. Challenge in this petition under Article 227 of the Constitution is made to order dated 30th November, 2004 passed by IX Additional District Judge (Fast Track), Gwalior in case No. 12-A/2004 by which an application filed by the respondent-plaintiff under Order 23 rule 1 CPC has been allowed and he has been permitted to withdraw the suit with liberty to file a separate suit. Inter alia contending that the suit in question has been permitted to be withdrawn and permission granted in all illegal manner, petitioner has filed this petition under Article 227 of the Constitution. 2. Plaintiff respondent has filed the suit in question for declaration and ownership of certain property left by late Gopaldas. Plaintiff claims his right to the property on the ground that Gopaldas has adopted him, petitioner-defendant has also claimed his right to the property on the basis of a adoption deed, it was his case that he is also adopted by late Gopaldas, after the written statement was filed the records indicated that petitioner plaintiff No. 1 moved about 3 applications, by an application for amendment Annexure P-8 filed on 9.3.2004 plaintiff wanted to bring on record certain fact with regard to his right to the property on the basis of adoption deed executed in his favour and also challenged execution of sale-deed dated 6.3.1995 therefore the application under Order 23 rule 1 of CPC seeking permission to withdraw the suit for filing a separate suit on the ground that he has not made proper pleading on the basis of the adoption deed and the sale-deed dated 6.3.1995, pointing out defect in the pleadings suit was prayed to be withdrawn by this application. This application has been allowed and Shri K.N. Gupta, learned counsel for the petitioner submits that the pleadings with regard to adoption deed and sale-deed having been incorporated, learned Court has committed error in allowing the application under Order 23 rule 1(3) CPC. This application has been allowed and Shri K.N. Gupta, learned counsel for the petitioner submits that the pleadings with regard to adoption deed and sale-deed having been incorporated, learned Court has committed error in allowing the application under Order 23 rule 1(3) CPC. By inviting my attention to the judgment of the Supreme Court in the case of Beniram and others v. Gaind and others [ AIR 1982 SC 789 ], reliance on which have been placed by the trial Court for allowing the application under Order 23 rule 1(3) CPC Shri K.N. Gupta, Senior Advocate points out that the said judgment was not applicable in the facts and circumstances of the case as pleadings with regard to adoption deed and sale-deed was already available and by applying this judgment for allowing the application it is argued that learned Court has committed grave error. Placing reliance on another judgment of this Court in the case of Uma Devi and another v. Nagar Palika, Begamganj and others [ 1999(2) MPJR 487 ], Shri K.N. Gupta, argues that the learned Court below does not have any absolute discretion. It is further pointed out by him that the defects in question is not formal defect and therefore, suit could not be withdrawn. In this regard he invites my attention to a judgment of Bombay High Court in the case of Ramrao Bhagwanrao Inamdar and another v. Babu Appanna Samage and others [AIR 1940 Bombay 121], accordingly Shri K.N. Gupta, learned counsel for the petitioner submits that the discretion exercised by the learned trial Court and the permission granted for withdrawal of the suit with liberty to file separate suit is erroneous and requires interference in this proceedings under Article 227 of the Constitution. 3. Refuting the aforesaid Shri V.K. Bharadwaj, learned counsel for the respondent No.1 submits that in allowing the application under Order 23 rule 1 and 3 of CPC and exercising the discretion learned Court has not committed any error which warrants interference in this proceedings under Article 227 of the Constitution. Shri Bharadwaj points out that the fact with regard to adoption of the plaintiff and sale-deed dated 6.3.1995 has not been incorporated by the plaintiff, this pleading was proposed to be incorporated by the amendment application Annexure P-8, but this application has not been allowed. Shri Bharadwaj points out that the fact with regard to adoption of the plaintiff and sale-deed dated 6.3.1995 has not been incorporated by the plaintiff, this pleading was proposed to be incorporated by the amendment application Annexure P-8, but this application has not been allowed. It was submitted by him that as the proper pleading with regard to adoption of the plaintiff and the sale-deed dated 6.3 .1995 are not made, there is a defect in the plaint and, therefore, the suit was rightly withdrawn and no case for interference is made out. It is pointed out by Shri V.K. Bharadwaj, that no prejudice is caused to the petitioner as the suit was at the preliminary stage even issues were not framed and for the inconvenience caused to the defendant petitioner cost of Rs.l,500/- has been granted to him. Accordingly it is submitted that there is no error of jurisdiction of law which requires correction and therefore, a petition under Article 227 of the Constitution is not maintainable. In support of the aforesaid contention he invites my attention to the principles laid down by the Supreme Court in the case of Mohd. Yunus v. Mohd. Mustaqim and others [ AIR 1984 SC 38 ], to canvass his contention that the petition under Article 227 of the Constitution is not maintainable. That apart placing reliance on a judgment of Bombay High Court in the case of Ramrao (supra), relied upon by Shri K.N. Gupta, learned senior counsel for the petitioner and referred to the expression formal defects as indicated in the application under Order 23 rule 1 of CPC Shri Bharadwaj, argues that this expression has to be given wide and liberal meaning and all the grounds which effects the merit of the case would come in the purview of this word. Placing reliance on another judgment of Orissa High Court in the case of Brajamohan Sabato v. Sarojini Panigrahi and another [AIR 1975 Orissa 39], a judgment of Allahabad High Court in the case of Umesh Chandra Saxena and others v. Administrator General, U.P. Allahabad and others [AIR 1999 Allahabad 109], and another judgment of Orissa High Court in the case of Atul Krushna Roy v. Raukishore Mohanty and others [AIR 1957 Orissa 77], Shri Bharadwaj argued that in arriving at the conclusion trial Court has not committed any error, the discretion exercised does not require any interference in this petition under Article 227 of the Constitution, accordingly he prays for dismissal of this petition. 4. As far as the factual aspect of the matter is concerned there is no dispute between the parties, the suit was at the very preliminary stage and even before framing of the issues suit was permitted to be withdrawn even though the pleadings based on adoption of the plaintiff was permitted to be incorporated by amendment the pleading on the basis of sale-deed dated 6.3.1995 was not made by the plaintiff in the suit, even the pleadings referred to in the plaint is defective as both plaintiff and defendant are claiming to be adopted son of late Gopaldas. Plaintiff moved about three applications for amendment under Order 6 rule 17 of CPC, application under Order 23 rule 1 of CPC. The application under Order 23 rule 1 of CPC was considered and learned Court found that there are various defects in the pleading and because of these defects there is likelihood of suit being dismissed, and allowed the application considering the principles laid down in the case of Beniram and others [ AIR 1982 SC 789 ], learned Court has held that the non-pleading may prove to be a technical impediment to the plaintiff and may result in dismissal of the suit. The Supreme Court in the case of Beniram (supra), has held that in such circumstances the suit can be withdrawn with liberty to file a fresh suit, this principle has been applied by the learned trial Court. In the circumstances of the present case discretion exercised in the matter cannot be said to be wholly arbitrary or erroneous warranting interference in a proceeding under Article 227 of the Constitution. In the circumstances of the present case discretion exercised in the matter cannot be said to be wholly arbitrary or erroneous warranting interference in a proceeding under Article 227 of the Constitution. The case of Uma Devi (supra), relied upon by Shri K.N. Gupta, defects were entirely different, in that case, the suit which was proposed to be withdrawn was connected with another civil suit and the records indicate that evidence of the plaintiff was concluded and most of the 'witnesses of the defendants were also examined. It was found that on the basis of the evidence the suit may not succeed and therefore, the suit was withdrawn with a view to file a fresh suit, under these circumstances the Court made observation in the case of Uma Devi (supra), and the principles laid down in the case of Uma Devi (supra), will not apply in the present case. On the contrary the judgments relied upon by Shri Y.K. Bharadwaj, clearly indicates that if there is a technical defect• in the suit, the suit can be withdrawn if the defect may result in dismissal of the suit. Non-pleadings of certain facts has been held to be a formal defect by Orissa and Bombay High Courts in the case of Atul (supra), and Ramrao (supra). In the present case learned trial Court has found that proper pleadings on the basis of adoption of the plaintiff and the sale-deed dated 6.3.1995 is not incorporated, therefore, discretion is exercised by holding that there is sufficient ground to allow the application under Order 23 rule 1 CPC. While considering the provision of Order 23 rule 1 CPC in the case of Uma Devi (supra), this Court has made the following observations : "The plaintiffs are required to satisfy that there are sufficient grounds to permit them to withdraw the suit with liberty to file a fresh suit. It is to be borne in mind that under Order 23 rule 1 a plaintiff has the absolute right to withdraw the suit or abondon his claim but an application under sub-rule (3) stands in a different footing as a plaintiff seeks withdrawal of the suit with liberty to file a fresh one. It is to be borne in mind that under Order 23 rule 1 a plaintiff has the absolute right to withdraw the suit or abondon his claim but an application under sub-rule (3) stands in a different footing as a plaintiff seeks withdrawal of the suit with liberty to file a fresh one. To avail the benefit of the said provision it is incumbent on the plaintiff to satisfy the Court that the good grounds exist for withdrawal of the suit for grant of liberty to file a fresh suit. The sufficiency of ground would include many factors such as the germaneness of the grounds put forth in the petition, the progress of the suit, the prejudice likely to be caused to the defendants and other ancillary and relevant concomitant factors. The obligation is on the plaintiffs to satisfy the Court that the requirements of Order 23 rule 1(3) are satisfied. The Court granting leave has no absolute discretion but has to satisfy itself with regard to the condition precedent." 5. In the present case it is seen that there is a formal defect in the suit inasmuch as the pleadings with regard to adoption of the plaintiffs and execution of the sale-deed dated 6.3.1995 have not been properly incorporated and because of these defects there is a likelihood dismissal of suit. On being satisfied about these contention learned trial Court has exercised the discretion. That being so it has to be held that in the present case discretion has been exercised by the learned trial Court after finding formal defects and therefore, the suit is likely to fail. That being so the question is as to whether the discretion exercised warrants interference in these proceedings under Article 227 of the Constitution. In the case of Mohd. Yunus (supra), the supreme Court has laid down the following principles. "The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record, much/less an error of law. In this case there was in our opinion, no error of law much less an error apparent on the face of record. In this case there was in our opinion, no error of law much less an error apparent on the face of record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principle of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227 the High Court does not act as an appellate Court or Tribunal." This being the scope of jurisdiction to be exercised by this Court and as there is no error of law, as the discretion exercised by learned trial Court is not found to be erroneous, no case is made out for interference in these proceedings under Article 227 of the Constitution. 6. Accordingly finding no merit in the contention advanced on behalf of the petitioner, petition stands dismissed with any order so as to cost.