JUDGMENT :- Heard Shri V. R. Dhorde, learned Counsel holding for Shri R. N. Dhorde, advocate for the petitioner and Shri C. R. Deshpande, learned Counsel for respondent No.1. Respondents No. 3 and 4, though served, are absent. 2. Rule, made returnable forthwith and heard finally by consent of the parties. 3. This is a petition by original defendant No. 2 raising exception to the order dated 21-11-2003, passed by Ad hoc Additional District Judge, Latur, below application Exhibit-29 in Regular Civil Appeal No. 173/96. 4. Respondent No. 1 - original plaintiff instituted Regular Civil Suit No. 46/91 claiming declaration of ownership in respect of house property as well as possession thereof. Plaintiff also prayed for decree of perpetual injunction restraining defendants from causing interference in plaintiffs possession over the suit property. 5. After full length trial, suit presented by the plaintiff came to be dismissed by virtue of judgment and decree dated 30-4-1996. Plaintiff presented an appeal, raising challenge to the judgment and decree passed by the trial Court, being Regular Civil Appeal No. 173/96. 6. At appellate stage, plaintiff presented an application seeking withdrawal of the suit with permission to file suit on the same cause of action. In the application, plaintiff contended that during pendency of proceedings, defendants No.1, 5 and 6 died and appellant - original plaintiff, on account of lack of information on his part about death of those defendants, could not present an application for bringing on record their legal heirs. The defect of substantial character is crept in which may lead to plaintiffs failure at the appellate stage. Another ground, that is stated in the application, is that the plaintiff alleged to have tried his level best to clarify certain factual aspects about the property with the help of Map and by specifying boundaries, however, description of the property, which is stated by the plaintiffs, appears to be vague and on that count, plaintiffs case is likely to fail. According to plaintiff, it is a patent ambiguity, which is a sufficient reason for seeking withdrawal of the suit with liberty to file fresh suit on the same cause of action. 7. According to plaintiff, it is a patent ambiguity, which is a sufficient reason for seeking withdrawal of the suit with liberty to file fresh suit on the same cause of action. 7. The first Appellate Court found that reasons stated by the plaintiff are within parameters of Order XXIII, Rule 1(3)(a) of the Code of Civil Procedure and as such, permitted the plaintiff to withdraw the suit with liberty to file fresh , suit on the same cause of action. 8. Shri Dhorde, learned Counsel appearing for the petitioner, while criticising the order, has contended that the application presented by the plaintiff before the Appellate Court does not disclose any ground as well as the plaintiff has not c1~rified as to what is the formal defect appearing in the suit, which has led him to present an application seeking withdrawal of the suit with liberty to file fresh suit on same cause of action. According to him, application does not satisfy requirements of Order XXIII, Rule 1(3)(a) of the Code of Civil Procedure and as such, the Appellate Court should not have exercised discretion in favour of the plaintiff. 9. Learned Counsel for the petitioner has also contended that petitioner is made to litigate the suit since 1991, which terminated in 1996. Even at the appellate stage, proceedings continued upto 2003 and after making L1e defendants to litigate the matter for almost twelve years, application is presented seeking withdrawal of the suit. If the order passed by the Appellate Court is permitted to operate, defendant would be further required to litigate the matter for number of years in future. This itself, according to the learned Counsel, is a prejudice caused to his client. 10. Shri Deshpande, learned Counsel for respondent No. 1 - original plaintiff, has supported the order passed by the Appellate Court. According to him, discretion has be~n exercised by the first Appellate Court in permitting withdrawal of the suit with liberty to file fresh suit on the same cause of action and the decision, rendered by the first Appellate Court, which is based on its subjective satisfaction, need not be interfered in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. 11. It is worthwhile to refer to provisions of Order XXIII, Rule 1 (3) of the Code of Civil Procedure, which reads as under: 1. 11. It is worthwhile to refer to provisions of Order XXIII, Rule 1 (3) of the Code of Civil Procedure, which reads as under: 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 subjectmatter of such suit or such part of the claim. 12. On perusal of the application presented by original plaintiff, it appears that he is raising two grounds, one as regards failure of the plaintiff to apply to the Appellate Court for permitting him to bring on record legal representatives of deceased defendants No.1, 5 and 6. The plaintiff, according to him, was prohibited to take steps due to lack of information with him. Second reason given is as regards ambiguity in describing the suit property. So far as first ground raised in the application is concerned, it is to be noted that defendant No.1 is the father of plaintiff and it cannot be imagined that the plaintiff was, in any way, prevented from taking steps for applying the Court and much less on account of lack of information on his part. So far as tendering an application for bringing legal representatives of deceased defendants No.5 and 6 are concerned, it cannot be termed, as a defect of formal nature, which requires withdrawal of the suit. The plaintiff/appellant can very well present appropriate application for impalement of legal representatives of concerned defendants. Another ground raised in the application is quite vague. The property has been described in the plaint and the description refers to old Municipal House Number as well as New Municipal House Number. The boundaries are also mentioned. The plaintiff has also described in detail as regards the sale transaction having taken place between defendant No. 1 and other defendants. It is not stated as to what is the defect in describing the suit property. The boundaries are also mentioned. The plaintiff has also described in detail as regards the sale transaction having taken place between defendant No. 1 and other defendants. It is not stated as to what is the defect in describing the suit property. The contentions raised in the application as regards defect in describing the property are quite vague. It is essential for the plaintiff to disclose as to what is the ambiguity which he wants to clarify by presenting a fresh suit. The contents of the application do not disclose any defect, which is of a formal character enabling the plaintiff to seek withdrawal of the suit within parameters of Order XXIII, Rule 1(3)(a) of the Code of Civil Procedure. 13. It is essential for the plaintiff to make out a ground seeking withdrawal of the suit for presenting a fresh suit on same cause of action. The plaintiff is required to disclose nature of formal defect in the application and if the application remains silent on this material point, such an application cannot be entertained by the Court. In the instant matter, I find that the application tendered by the plaintiff do not satisfy requirements of Order XXIII, Rule 1(3)(a) and as such, the first Appellate Court was not justified in permitting the plaintiff to withdraw the suit with liberty to present fresh suit on the same cause of action. 14. Learned Counsel for the petitioner has placed reliance on the judgment in the case of Govind Gulabrao More and another vs. Laxman Gulabrao More and others, reported in 2000(1) Mh.L.J. 310 . It has been laid down by this Court that if the plaintiff wants to deprive the defendant of the advantages which they had obtained by securing favourable judgment from the lower Court, the plaintiff shall not be permitted to do so unless he fulfills the requirement, as laid down under Order XXIII, Rule 1(2) of the Code of Civil Procedure. This Court has further cautioned that the power has to be exercised very cautiously by the Court of Appeal. Learned Counsel for the petitioner has also placed reliance on the judgment of Full Bench in the case of RamrclO Bhagwantrao lnamdar and another vs. Babu Appanna Samage and others, reported in AIR 1940 Bombay 121, to support his contentions. This Court has further cautioned that the power has to be exercised very cautiously by the Court of Appeal. Learned Counsel for the petitioner has also placed reliance on the judgment of Full Bench in the case of RamrclO Bhagwantrao lnamdar and another vs. Babu Appanna Samage and others, reported in AIR 1940 Bombay 121, to support his contentions. The judgment in the case of Govind (supra), in terms, has placed reliance on the earlier judgment of the Full Bench in the case of Ramrao (supra), in support of the above referred proposition of law. 15. For the reasons recorded above, I am of the view that the order passed by the first Appellate Court is not sustainable and needs to be quashed and set aside. 16. In the result, order dated 21-11-2003, passed by Ad hoc Additional District Judge, Latur, below app1icatior. Exhibit-29 in Regular Civil Appeal No. 173/96, is quashed and set aside. It is made clear at this stage that the plaintiff would be free to prosecute his appeal and would have a liberty to take all appropriate steps for prosecuting the appeal. Parties will have liberty to raise all the points and contentions which they can legally canvass before the first Appellate Court. 17. In this view of the matter, Rule is accordingly made absolute. In the facts and Circumstances of this case, there shall be no order as to costs. Order accordingly.