IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.4242 of 2008 Between: Ch.Rajagopala Krishna ..... PETITIONER AND K.Venkata Ramanamma .....RESPONDENT The Court made the following: THE HONOURABLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.4242 of 2008 ORDER: Petitioner is the plaintiff who filed the suit O.S.1892/2004 on the file of the Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam, seeking declaration that he was the absolute owner of plaint-A,B,C,D schedule properties and for delivery of possession. The suit schedule properties said to have been purchased by the petitioner are in Sy.No.99/1D of Marripalem which are said to have been encroached upon by the respondent herein. It is stated that in fact the correct survey number is 104/1p, but inadvertently the survey number was mentioned as 99/1D. If that be so, it is always open for the petitioner to take appropriate steps for amendment of the plaint, but instead he wanted to withdraw the said suit after adducing the evidence and at the time of arguments, filed application in I.A.276/2008 under Or.23 Rule-1 (2) & (3) r/w.Sec.151 CPC to withdraw the suit with a liberty to file a fresh suit. Under clause (b) of sub-rule-(3) of Rule-1 of Or.23 CPC if the Court satisfies 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, the plaintiff may be permitted to withdraw the suit with liberty to institute a fresh suit. The Court below dismissed the said application on the ground that as per the version of the plaintiff the mention of the Sy.No.99/1D is wrongly mentioned instead of Sy.No.104/1. If that be so, it is only a formal defect. I am of the opinion that when it is a formal defect, it is a good ground for allowing the application permitting the petitioner to withdraw the suit and to file a fresh suit. Under Or.23 Rule-1(3) CPC if sufficient ground is shown by the plaintiff for instituting a fresh suit on the ground that the suit may fail by reason of formal defect or that there are sufficient grounds for allowing the plaintiff to file fresh suit for the subject matter of the suit or part of the claim, permission may be granted to the plaintiff permitting to withdraw the suit with liberty to institute a fresh suit. I am of the opinion that when the Court below itself has mentioned that it is a formal defect, it is a sufficient ground to permit the plaintiff to withdraw the suit with a liberty to institute a fresh suit instead of permitting the plaintiff to amend the plaint. In view of clear provision available permitting the plaintiff to withdraw the suit and to file a fresh suit under Rule-1(3) of Order 23 CPC, the impugned order is set aside. The Civil Revision Petition is accordingly allowed. No order as to costs ___________________ V.ESWARAIAH,J Dated: 10.12.2010 Dsr