ORDER : A.V. Chandrashekara, J. 1. Heard the learned counsel for the parties. The matter is taken up for final hearing with the consent of both the counsel. 2. The present petition has arisen out of an order passed as on interlocutory application i.e., I.A. 3 filed in O.S. 109/12 under Order XXIII Rule 1 read with Section 151, C.P.C. by the plaintiff (respondent herein) before the Civil Judge (Junior Divn.), Challakere, Chitradurga District. Respondents 1 to 3 had filed a suit for the relief of declaration to the effect that the alleged sale deed dated 4.9.2006 executed by defendants 1 to 3 in favour of the 4th defendant in respect of the suit schedule premises does not bind them and for the consequential relief of permanent injunction to restrain the defendants from interfering with their peaceful possession and enjoyment of the suit property. 3. The suit came to be contested by the 4th defendant only by filing detailed written statement. The 5th defendant had also filed written statement. Issues had not yet been framed. In the meanwhile, plaintiffs chose to file an application under Order XXIII Rule 1 read with Section 151, C.P.C. requesting the court to permit them to withdraw the suit with liberty to file a fresh comprehensive suit. The said application had been accompanied by the sworn affidavit of the 1st plaintiff-Smt. Jayalakshmi. 4. After hearing both sides, the learned trial judge has ultimately allowed the application vide order dated 20.12.2013. It is this order which is assailed before this court by invoking Articles 226 and 227 of the Constitution of India. 5. An application under Order XXIII Rule 1 read with Section 151, C.P.C. can be allowed only when there is a formal defect. In the present case, the entire suit of the plaintiff is practically for the relief of declaration as well as for the consequential relief of permanent injunction. Mere affidavit filed by one of the plaintiffs in support of the application is bald. What is stated in the affidavit is that the defence put forth by the defendants is one of specific denial of their title to the property and therefore they are constrained to withdraw the said suit and that they were advised to withdraw to file a comprehensive suit. 6. As could be seen from the relief sought for by the plaintiff, only the relief of permanent injunction is sought. 6. As could be seen from the relief sought for by the plaintiff, only the relief of permanent injunction is sought. But it contains all necessary ingredients to seek the relief of declaration also. If the plaintiffs want anything to be clarified with regard to the manner in which the suit is filed, nothing comes in their way to file necessary application under Order VI Rule 17, C.P.C. seeking amendment to be incorporated in the plaint so as to enable them to lead evidence effectively. 7. The approach of the trial court is improper and needs to be corrected by this court. No formal defects as such are forthcoming in terms of Order XXIII Rule 1, C.P.C. Just because the order does not cause any hardship to the adversary is not a grant to allow an application Under Order 23 R 1 of CPC unless "formal defect" is forthcoming. Accordingly the following order is passed: ORDER "The petition is allowed. The order dated 20.12.2013 passed in O.S. 109/12 on I.A. 3 is set aside. The suit is restored to file. In the event of an application being filed under Order VI Rule 17, C.P.C., the trial court to pass appropriate orders after giving opportunity to the defendants. Parties are directed to appear before the trial court on 3.8.2015 without awaiting further notice."