JUDGMENT 1. - Instant revision petition has been filed against order dated 02.11.2004 passed in Civil Original Case No.12/2000 by Civil Judge (Jr. Dn.), Dungala (District Chittorgarh) whereby application filed by the plaintiff respondents under Order 23 Rule 1, C.P.C. was allowed and trial Court permitted the plaintiff respondents to withdraw the suit with permission to file fresh suit. 2. Learned counsel for the defendant-petitioners No.1 to 3 submits that the respondent-plaintiffs filed suit for permanent injunction stating therein that their land over which they have ownership and possession exists in khasra No.280, 281 and 290; and, southern half of khasra No.281 was purchased by the father of the plaintiffs and northern half of khasra No.282 was purchased by the defendant Toli Ram. The plaintiffs' case is that in order to reach their land situated in khasra 280 and 281 they were using embankment on the western-most part of khasra 282 and through this way the plaintiffs are taking their bullock-cart and agricultural implements. In the sale-deed also, it was mentioned that the way situated in khasra No.282 shall remain open and none of the parties shall close it. 3. The plaintiffs while narrating the above facts alleged that the defendants have closed the way situated in the western embankment of khasra No.282 and along with the said way they have closed the water dhora of north side of khasra No.281 also. In the suit, a prayer was made to re-open the way. 4. The defendants filed their written-statement and submitted that no way is in existence as alleged by the plaintiffs in between the embankment of khasra No.282 but there is a public way in khasra No.284 which is used by the plaintiffs for reaching khasra No.280. 5. The plaintiffs filed a temporary injunction application also under Order 39 Rules 1 & 2, C.P.C. in the suit before the trial Court and, after appointment of commissioner for site inspection, learned trial Court passed order on temporary injunction application against the petitioners which was affirmed by the appellate Court but the same was set aside in revision by the High Court on 16.10.2001. 6. 6. Learned counsel for the petitioners submits that during pendency of the suit, the plaintiff-respondents filed an amendment application on 11.11.2002 for adding a new ground and relief regarding mandatory injunction and declaration, against which, a reply was filed by the petitioners and during pendency of the said application for amendment, the plaintiffs filed an application under Order 23 Rule 1, C.P.C. on 02.11.2004 on the ground that defendants had constructed a wall and denied the right of way to the plaintiffs and as such they want to file suit for declaration and mandatory injunction. The defendant-petitioners filed their reply immediately to the said application and opposed the prayer for seeking liberty to file fresh suit; but, the trial Court erroneously passed an order in favour of the plaintiff respondents and granted liberty to withdraw the suit and file fresh suit as desired by them vide impugned order dated 02.11.2004. 7. Learned counsel for the petitioners submits that order impugned is totally wrong, perverse and against the principles of law. The trial Court ought to have considered the language of Order 23 Rule 1 (3)(a) of the Code of Civil Procedure, in which, it is provided that any party may withdraw his suit with liberty to file fresh suit but, according to said provision, the plaintiff must make out a case within clause (a) or (b), therefore, the trial Court committed an error while allowing liberty to file fresh suit after withdrawal. 8. As per counsel for the petitioners, withdrawal of the suit with liberty cannot be permitted unless either condition of clauses (a) and/or (b) is satisfied, in which, it is provided that there must be existence of formal defect in the suit and, after recording satisfaction that specific ground regarding formal defect in the suit is in existence, then, the Court can exercise its power to grant permission; but, in this case, liberty has wrongly been granted to the plaintiff respondents because the Court ignored the statutory mandate provided under Order 23 Rule 1(3)(a), C.P.C. Therefore, the order impugned is totally illegal because there is no formal defect in existence upon which the plaintiffs can claim liberty to file fresh suit, therefore, the order impugned may be quashed. 9. 9. Per contra, learned counsel appearing for the respondents vehemently opposed the prayer and submits that as per Order 23 Rule 1(3)(a) and (b) there is power left with the Court to grant liberty and to pass order on such terms as it thinks fit; and, in this case, a specific observation has been made by the trial Court that the plaintiff wants to withdraw the suit for the reason that after filing the suit material changes were made upon the land in question, therefore, the order passed by the trial Court does not suffer from any illegality. 10. After hearing learned counsel for the parties I have perused the entire pleadings, so also, relevant provisions contained in Order 23 Rule 1, C.P.C. which reads 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. After perusing the order impugned and aforesaid provision of law, I am of the opinion that no error has been committed by the trial Court in passing the order impugned. After perusing the order impugned and aforesaid provision of law, I am of the opinion that no error has been committed by the trial Court in passing the order impugned. The trial Court gave finding of satisfaction and passed following order for withdrawal of suit with liberty to file fresh suit : " vkns'k fnukad 2-11-2004 2-11-2004 oknhx.k ds vf/koDrk mi0 izfroknhx.k ds vf/koDrk mi0 vf/koDrk oknhx.k Jh ,u0ds0 esgrk us ,d izkFkZuk i= izLrqr dj nkok foM~k djus rFkk u;k nkok izLrqr djus dh btktr pkgh gSA izfrfyfi Jh ,l0,u0 uyok; vf/k0 dks fnykbZ xbZ ftUgksaus tokc is'k fd;kA mHk; i{k dks lqukA nkos ds ckn ekSds ij iRFkj dh dksV cuk fn;s tkus ds dkj.k jkLrs dh ?kks"k.kk ,oa vkKkid O;kns'k dk nkok is'k djuk pkgrs gSA eqdnesa ds ckn dh fLFkfr esa ifjorZu ds vUrxZr ,slk pkgk tk jgk gSA vfHkys[k ds voyksdu ls ,slh fLFkfr Li"V gS vr% izLrqr izkFkZuk i= vUrxZr vkns'k 23 fu;e 1] lh0ih0lh0 bl izdkj Lohdkj fd;k tkrk gS fd u;k nkok is'k fd;s tkus fd fLFkfr esa oknhx.k foi{kh dks ,d lkS :i;s dksLV vnk djsaxsA vkns'k lquk;k i=koyh Qsly gksA " 12. After perusing the above order I am of the opinion that no jurisdictional error has been committed by the trial Court because as per Order 23 Rule 1, C.P.C. there is power left with the Court to record satisfaction and pass order for granting liberty. The judgments cited by learned counsel for the petitioners are not relevant upon the facts of the present case because in the case on hand the trial Court passed order in consonance with provisions of Order 23 Rule 1, C.P.C. Therefore, there is no jurisdictional error warranting interference in the impugned order.Accordingly, this revision petition is dismissed.Revision dismissed. *******