ORDER : This application is filed by the petitioner under Order XXIII Rule 1 (3) of CPC. The petitioner has prayed for permitting it to withdraw its suit O.S.1/2012 on the file of the Wakf Board, Mysuru. If brief background is given, it is as follows : 2. The petitioner is the plaintiff in the suit. It is an education institution at Hunsur. Its institutions are situated in the land bearing Sy. Nos. 23 and 24 measuring approximately 9 acres. This property is described in schedule ‘A’ to the plaint. There exists a road marked with letters ‘QRDCQ’ in the sketch providing access to the institution from the main road. The case of the petitioner is that since the year 1957, it has been making use of the said road without any hindrance. The defendants caused obstruction to making use of this road by erecting pillars and fixing a gate. Therefore, the petitioner brought the suit seeking the relief’s of declaration that it has got easement of prescription over the said road, mandatory injunction to the defendants for removing the obstacles and permanent injunction to restrain the defendants from putting up any obstruction on the road. The defendants filed written statement, denied the case of the petitioner and contended specifically that the suit was not maintainable as notice under section 89 of the Wakf Act was not issued before institution of the suit. 3. The Wakf Tribunal recorded the evidence of the witnesses and dismissed the suit. One of the reasons for dismissal of the suit was non-issuance of notice as required under section 89 of the Wakf Act. Challenging the order of dismissal of the suit, the petitioner preferred the revision petition in which the present application under consideration has been filed. 4. I have heard the arguments of Sri T.N.Raghupathy, learned counsel for the petitioner and Smt. S.R.Anuradha, learned counsel for the respondents. 5. Sri T.N.Raghupathy firstly submitted that he would not press identical application I.A.1/2016. Accordingly the said application was dismissed. So far as I.A.2/2017 is concerned, it is his argument that the main ground for dismissal of the suit was non-issuance of notice under section 89 of the Wakf Act. It is true that the petitioner did not issue notice. This was a formal defect which can be rectified. Accordingly the said application was dismissed. So far as I.A.2/2017 is concerned, it is his argument that the main ground for dismissal of the suit was non-issuance of notice under section 89 of the Wakf Act. It is true that the petitioner did not issue notice. This was a formal defect which can be rectified. He has argued that issuance of notice under section 89 of the Wakf Act, just like issuance of notice under section 80 of the CPC, is with a view to drawing the attention of the Wakf Board for addressing the grievance of the plaintiff in order to avoid institution of the suit. Actually question of maintainability of suit does not arise; issuance of notice is only a statutory requirement which can be rectified at any stage and therefore in the present revision petition, the application made by the petitioner can be granted so that the petitioner will institute a new suit by issuing a notice to the defendants, The interest of the defendants will not be affected in any way. He has referred to Order 23 Rule 1 (3) to substantiate his argument that whenever formal defect is made out, the plaintiff can withdraw the suit any time and with the leave of the court, a fresh suit can be instituted for the same cause of action. He also argued that even for any other reason, suit can be permitted to be withdrawn. 6. Smt. S.R.Anuradha countered this argument by arguing that the Wakf Tribunal dismissed the suit not only for the reason that notice was not issued, but also for the reason that the petitioner failed to prove its easementary right over the defendant’s property. The judgment of the Wakf Tribunal clearly indicates findings on all the issues as required under Order 14 Rule 2 of CPC. With the dismissal of the suit, a right accrued in favour of the defendants; and if permission to withdraw the suit is given now, it only results in destroying that right. She referred to three judgments of the Supreme Court, namely (i) R.RATHINAVEL CHETTIAR AND ANOTHER vs V.IVARAMAN AND OTHERS [ (1999) 4 SCC 89 ]; (ii) K.S.BHOOPATHY AND OTHERS vs KOKILA AND OTHERS [(2004) 5 SCC 458] AND (iii) AVENUE SUPERMARTS PRIVATE LIMITED VS NISCHINT BHALLA AND OTHERS [ (2016) 15 SCC 411 ], in support of her arguments. 7. She referred to three judgments of the Supreme Court, namely (i) R.RATHINAVEL CHETTIAR AND ANOTHER vs V.IVARAMAN AND OTHERS [ (1999) 4 SCC 89 ]; (ii) K.S.BHOOPATHY AND OTHERS vs KOKILA AND OTHERS [(2004) 5 SCC 458] AND (iii) AVENUE SUPERMARTS PRIVATE LIMITED VS NISCHINT BHALLA AND OTHERS [ (2016) 15 SCC 411 ], in support of her arguments. 7. Sri T.N.Raghupathy replied that the principles laid down by the Supreme Court in the above three judgments are not applicable to the facts. He distinguished the above judgments, especially the applicability of ratio in R.Rathinavel (supra), by submitting that in the said case the suit was decreed in favour of the plaintiff and then the defendant preferred an appeal. The plaintiff, having sold the property to the appellants, made an application in the appellate court for withdrawing the suit after entering into a compromise with the defendants. The appellants being purchasers from the plaintiff objected to withdrawal of the suit by the plaintiff as they could take advantage of the decree in favour of the plaintiff. It was in these circumstances the Supreme Court held that the suit should not be permitted to be withdrawn at the appellate stage. Here the plaintiff’s suit is dismissed on a technical ground. So far as the merits of the suit are concerned, the Wakf Tribunal has decided the suit on the premise that the petitioner sought declaration with regard to easement of necessity, which was not at all the case of the petitioner. Even if the revision petition is allowed, the matter requires to be remanded to the tribunal for consideration afresh. In the circumstances, the interest of the respondents will not be affected if application under Order 23 Rule 1 (3) CPC is allowed. 8. I have considered the arguments. Before dealing with the core issue, I find it necessary to refer to the three judgments cited by Smt. S.R.Anuradha. In R.Rathinavel Chettiar (supra), the Hon’ble Supreme Court has observed as below : “12. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought. In R.Rathinavel Chettiar (supra), the Hon’ble Supreme Court has observed as below : “12. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystallised and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. Now, the decree can be recalled, reversed or set aside either by the Court which had passed it as in review, or by the Appellate or Revisional Court. Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits”. 9. In the case of K.S.Bhoopathy (supra), what is held is ; “13. The provision in Order 23 Rule 1 C.P.C is an exception to the common law principle of non-suit. Therefore, on principle an application by a plaintiff under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided: (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order 23 Rule (1) is filed by the plaintiff at the stage of appeal…….” 10. In Avenue Supermarkets (supra) also the case of Rathinavel Chettiar (supra) is followed to hold that the rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody’s vested rights. 11. Order 23 Rule 1 of CPC reads as below : Order 23. Withdrawal and adjustment of suits 1. Withdrawal of suit or abandonment of part of claim. (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim : Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (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. (4) Where the plaintiff – (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs”. 12. On plain reading of the above provision, it becomes very clear that before allowing the application under Order 23 Rule 1 (3) CPC, the court must be satisfied that the suit should fail by reason of some formal defect or sufficient grounds exist for permitting the plaintiff to institute a fresh suit for the same subject matter of a suit or part of a claim. It is true that as has been held by the Hon’ble Supreme Court in the above decisions, application for withdrawal of the suit with liberty to file fresh suit should not be granted if such permission destroys the decree and the rights accrued in favour of a party by virtue of the decree cannot be nullified. The appellate court or the court exercising revisional powers should find a strong reason for granting the application, and merely coming to conclusion that a formal defect is made out cannot be a reason for allowing the application. As has been held by the Supreme Court in the case of K.S.Bhoopathy (supra), the discretion must be exercised with caution and circumspection. As has been held by the Supreme Court in the case of K.S.Bhoopathy (supra), the discretion must be exercised with caution and circumspection. So what can be made out from the ratio laid down in the three decisions is that the power of the court to allow application under Order 23 Rule 1 (3) CPC is not totally taken away merely because one party to the suit is benefited by the decree, but before exercising the power, the court must be very careful and apply its mind. 13. Sri T.N.Raghupathy rightly distinguished the applicability of the judgment of the Supreme Court in the case of Rathinavel (supra). The appellants in the said judgment were the purchasers from the plaintiff in whose favour there was a decree of declaration of title. After selling the property to the appellants, if he entered into compromise with the defendants at the appellate stage, the appellants had a real grouse to object to that application as they being the successors in interest of the plaintiff had been benefited by the decree. In the case on hand, the petitioner being the plaintiff in the suit wants to enforce easement of prescription over the road as according to it, it has been using the said road without any hindrance since the year 1957 and thereby it could enforce right of easement by prescription. It is clear from the judgment of the Wakf Tribunal that, it has not decided the issue of easement by prescription, rather it has proceeded to decide the whole case thinking that the petitioner is claiming right of easement by necessity which is altogether a different concept. Having found that there exists another road, the tribunal non-suited the petitioner. This is one of the reasons for dismissing the suit. Therefore it is clear that the Wakf Tribunal has not decided the actual issue before it and in this view, if the revision petition is decided on merits, obviously it deserves to be allowed and the matter remanded to the Tribunal for decision afresh. In that event the respondent being the defendant should necessarily appear before the tribunal and defend its case once again. Therefore, non-application of mind by the tribunal can be considered to be a sufficient ground for allowing the application. 14. Another reason for dismissing the suit is non-issuance of notice as required under Section 89 of the Wakf Act. In that event the respondent being the defendant should necessarily appear before the tribunal and defend its case once again. Therefore, non-application of mind by the tribunal can be considered to be a sufficient ground for allowing the application. 14. Another reason for dismissing the suit is non-issuance of notice as required under Section 89 of the Wakf Act. As rightly argued by Sri T.N.Raghupathy, notice of this nature is issued for drawing the attention of the Wakf Board for addressing the grievance of the plaintiff so that institution of the suit can be avoided. Non-issuance of notice according to me is a defect formal in nature which can be rectified by issuing notice once again. An analogy from section 80 of CPC can be drawn. Subsection (2) of section 80 CPC states that to obtain an urgent or immediate relief against the Government, suit can be filed without issuing notice, but by obtaining permission from the court. If the court finds no urgency, it can return the plaint to the plaintiff for presentation after issuing notice. That means to say the court can itself direct the plaintiff to issue notice and then reinstitute the suit. In the same way, the plaintiff is not precluded from withdrawing the suit, if he notices the defect of non-issuance of notice, for the purpose of instituting a new suit after curing the defect. In this case also if no notice was issued by the petitioner under section 89 of the Wakf Act, he can be permitted to withdraw the suit to comply with the said provision. Therefore, on this ground also the application can be allowed. 15. Order 23 Rule 1 CPC further states that an application may be allowed on terms in the circumstances of the case. The petitioner wants to withdraw the suit at the revision stage. The suit was filed in the year 2012. The impugned judgment was passed on 20.4.2016. The respondents have to appear before the tribunal once again. Therefore, the petitioner should be directed to pay costs to the respondents. With this discussion, the following : - ORDER (i) I.A.2/2017 filed under Order 23 Rule 1 (3) of CPC is allowed and the petitioner is permitted to withdraw the suit O.S.1/2012 and the petitioner is given liberty to file fresh suit on the same cause of action. Therefore, the petitioner should be directed to pay costs to the respondents. With this discussion, the following : - ORDER (i) I.A.2/2017 filed under Order 23 Rule 1 (3) of CPC is allowed and the petitioner is permitted to withdraw the suit O.S.1/2012 and the petitioner is given liberty to file fresh suit on the same cause of action. (ii) The petitioner is directed to pay costs of Rs.20,000/- to the respondents and the costs shall be paid within two weeks from today. (iii) Payment of costs is a condition precedent for filing fresh suit by the petitioner. Costs may be deposited before this court or paid to the respondents directly. In the event of costs being paid to the respondents, they shall report the same to this court by filing a memo. (iv) In view of I.A.2/2017 being allowed, the revision petition does not survive for further consideration and therefore it stands disposed of.