JUDGMENT 1. - The petitioners are aggrieved by the order dated 14.2.2014 passed by the Additional Civil Judge (Jr. Div.) No.2, Dholpur whereby the application filed by the petitioners under Order 23, Rule 1 CPC for withdrawal of the counter claim with liberty to file a fresh suit has been partly rejected. While the learned Magistrate has permitted the petitioners to withdraw their counter claim, she has not granted the permission for filing a fresh suit, as sought by the petitioners. 2. The brief facts of the case are that the respondent-plaintiff filed a civil suit for declaration and permanent injunction against the petitioners-defendants before the learned trial court. The petitioners filed their joint written statement and counter claim before the learned trial court. During pendency of the suit and the counter claim, the petitioners filed an application under Order 23, Rule 1 CPC seeking permission to withdraw their counter claim with liberty to file a fresh suit in respect of subject matter of the counter claim. By order dated 14.2.2014, the learned Magistrate has partly allowed the application filed by the petitioners. While the learned Magistrate has permitted the petitioners to withdraw their counter claim, she did not grant permission to file a fresh suit. Hence, this petition before this court. 3. Mr. J.P. Goyal, the learned senior counsel for the petitioners, has vehemently contended that under Order 23, Rule 1 (3) CPC, if a suit must fail for the reason of some formal defect, or 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, then the court should 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. Therefore, according to the learned senior counsel, the learned Magistrate could not have denied the permission to the petitioners to institute a fresh suit. Secondly, in case such a permission is not granted it may lead to a legal complication with regard to maintainability of the suit which may be filed by the petitioners in future. Therefore, the impugned order deserves to be interfered with. 4. Heard the learned counsel for the petitioners and perused the impugned order. 5. Secondly, in case such a permission is not granted it may lead to a legal complication with regard to maintainability of the suit which may be filed by the petitioners in future. Therefore, the impugned order deserves to be interfered with. 4. Heard the learned counsel for the petitioners and perused the impugned order. 5. Needless to say, the jurisdiction of a revisional court is a narrow one. The revisional power can be exercised only on a demonstration that the court below has either failed to exercise a jurisdiction vested in it, or has overstepped its jurisdiction, or has acted illegally, or with material irregularity. 6. Sub-rule (3) of Rule 1 Order 23 clearly states that where the court is satisfied that a suit must fail by reason of some formal defect, or 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. The word used by the legislature is "may" which clearly bestows a discretionary power on the court. Such a discretionary power cannot be cribbed, cabined or confined. Therefore, the learned counsel is not justified in claiming that merely because a suit is likely to fail for some reason of formal defect then, under such circumstances the court must have granted such a permission. Such an argument goes beyond the tenor of the provision. 7. According to the learned counsel, there was a formal defect, namely that the property in dispute were claimed to be two different properties by both the parties, and because of this formal defect, the counter claim would have failed. It is this plea raised by the petitioners which was accepted by the learned Magistrate in permitting them to withdraw their counter claim. But while permitting the petitioners to withdraw the counter claim, there is no requirement of law that a permission must be granted to institute a fresh suit. Since the learned Magistrate has exercised her discretion vested in her, no case is made out for invoking the revisional jurisdiction of this court. 8. But while permitting the petitioners to withdraw the counter claim, there is no requirement of law that a permission must be granted to institute a fresh suit. Since the learned Magistrate has exercised her discretion vested in her, no case is made out for invoking the revisional jurisdiction of this court. 8. As far as the third contention that it may lead to certain legal complications with regard to maintainability of the suit which may be filed by the petitioners in future is concerned, such a contention is based merely on anxiety which has no evidentiary value at present. 9. For the reasons stated above, this court does not find any illegality, or perversity in the impugned order. This petition being devoid of any merit, is hereby, dismissed. The stay application also stands dismissed.Petition Dismissed. *******