Anil Kumar, J.: - Heard H.G. S. Parihar, learned counsel for the petitioner and learned Standing Counsel for the opposite parties. 2. By means of the present writ petition the petitioner has challenged the order dated 27.2.1990 passed by District Judge, Pratapgarh and the order dated 10.3.1987 passed by Munsif Kunda, Pratapgarh. 3. In brief, the facts of the present case are that the plaintiff- petitioner has instituted a Suit ( O.S. No 366 of 1983) for permanent injunction for Abadi land situated at Pargana Bihar, Tehsil Kunda District Pratapgarh on the ground that the land in question was ancestral Abadi land of the plaintiff-petitioner. Ramroop Singh (opposite party no.3) had filed written statement taking an objection that the disputed land was Bhoomidhari land of Shiv kali, as she was the necessary party in the suit but as she was not impleaded so the suit is liable to be dismissed on the ground of non- joinder of necessary party. Further an objection was also taken that suit cannot be entertained in the civil court. 4. In view of the said objection, plaintiff-petitioner moved an application under Order 6 Rule 17 of C.P.C. for amendment in the plaint in order to introduce the fact that the disputed land was purchased from Ayodhya Singh, and also filed and application for permission to file the original sale-deed, the same was rejected by Munsif, Kunda Pratapgarh and attained finality as the same was not challenged by the plaintiff/petitioner before any forum. 5. On 7.3.1989, petitioner moved another application ( Application no. 89 Ka1 under Order 23 Rule 1(3) to withdraw the suit as there was formal defects in the suit and it was pleaded therein that the disputed land was purchased from Ayodhya Singh but due to mistake of counsel in the plaint it was mentioned that the land in dispute was an ancestral land, the application was hotly contested between the parties but by order dated 10.3.1989, the opposite party no. 2 had rejected the same and fixed the matter in suit for arguments. 6. The order dated 10.3.1989 passed by opposite party no.2 was challenged by way of Revision (Civil Revision No. 3008 of 1989) before opposite party no.1 and the same was dismissed by order dated 27.2.1990, hence the present writ petition. 7. 2 had rejected the same and fixed the matter in suit for arguments. 6. The order dated 10.3.1989 passed by opposite party no.2 was challenged by way of Revision (Civil Revision No. 3008 of 1989) before opposite party no.1 and the same was dismissed by order dated 27.2.1990, hence the present writ petition. 7. Learned counsel for the petitioner, while assailing the order under challenge in the present writ petition, submits that the same are contrary to the provisos as contained under Order 23 Rule 1(3) C.P.C. Which provides that the suit can be withdrawn at any time by the plaintiff as the plaintiff( petitioner ) had mentioned in his application that there are some defects in the suit so the same is the sufficient ground to allow the application and permit him to institute a fresh suit for the subject matter in question. 8. I have heard learned counsel for the parties and perused the record. 9. Admittedly, in the present case initially the suit was instituted by the plaintiff with the pleadings that the disputed property was ancestral Abadi land of the plaintiff/petitioner and thereafter when the written statement was filed on behalf of the respondents taking the plea that the land in question was Bhoomidhari land of Shiv kali and the suit is not maintainable in the civil court then at that stage, an amendment application under provision of Order 6 Rule 17 C.P.C. was moved by the plaintiff/petitioner in order to bring the facts that the disputed land was purchased by way of sale-deed from Ayodhya Singh and the said facts were disclosed to the counsel by him inspite of the same it was wrongly pleaded in the plaint as ancestral land. The said application was rejected by opposite party no.2 and attained finality. 10. The said application was rejected by opposite party no.2 and attained finality. 10. Thereafter, the plaintiff/petitioner on same facts again moved an application under Order 23 Rule 1 (3) of C.P.C. which provided as under:- "(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." 11. In the instant case the opposite party no.2 while passing the order dated 10.3.1989 had given categorical finding of fact that the plaintiff in his application does not able to indicate any formal defects in the suit which enable him to withdraw the suit but an application under Order 23 Rule 1 (3) of C.P.C., had been moved by the plaintiff/petitioner to rigel out from the admission ( Mahatvapurn swikrit) which he had made in the plaint, on the said ground dismissed the application. Further, while dismissing the revision the opposite party no.1 in the order dated 22.2.1990 has also given the findings that the order dated 10.3.1989 does not suffer from any infirmity capable to cause miscarriage of justice or any other irreparable injury to the plaintiff- revisionist. It is very much obvious that no formal defect of the tenable nature was disclosed before the trial court and the same is not at all available at this stage also. 12. It is well settled proposition of law that this Court while exercising the power of judicial review under Article 226 of the Constitution of India can set aside the findings of fact recorded by the courts below if they are contrary to the facts and perverse in nature. The said two conditions does not exit in the present case. 13. It is well settled proposition of law that this Court while exercising the power of judicial review under Article 226 of the Constitution of India can set aside the findings of fact recorded by the courts below if they are contrary to the facts and perverse in nature. The said two conditions does not exit in the present case. 13. Further, the object of the rule is not to allow and give an opportunity to the plaintiff to commence the trial afresh, after he has failed to conduct the first suit filed by him on the basis of evidence which he has filed with due care and diligence and to substantiate his case by fresh evidence. 14. Moreover, the sub rule 3(a) of Order 23 C.P.C. provides that in order to withdraw the suit the defect must be formal in nature; Formal defect is a defect of form prescribed by rules of procedure e.g. mis-joinder of parties:, of causes of action, non payment of proper court; failure to disclose cause of action etc. [ see Atul Vs. Rav Kishore, AIR. 1956 Orissa 77 and Damyanti Rai Bakshi Vs. Mararay Kumar Mehta AIR 2004 Delhi 422] 15. Further non joinder of necessary parties is not a formal defect but is a material defect and hence cannot be basis for an order Under Order 23 Rule 2 & 3 C.P.C. [ see Kahatuna and another Vs. Rameshwar and others AIR 1986 Orissa 1] and also non description of suit property is not a formal defect as held in the case of Debasis Singher Rao Vs. Tapada Ray 2001 (2) CCC 30 Cal. so I do not find any illegality or infirmity in the order passed by the courts below which are under challenged in the present writ petition. Accordingly, the present writ petition lacks merit and is dismissed. No order as to costs.