R.S. Pathak, C.J.
1. This is a defendant's revision petition directed against an order of the learned Subordinate Judge, Kangra permitting the plaintiff to withdraw his suit with liberty to file a fresh suit.
2. The plaintiff filed a suit for declaration that he was the owner in possession of the disputed land. During the pendency of the suit he discovered that the land had been acquired by the State Government. Accordingly, he applied under Order 53, Rule 1 (2) of the Code of Civil Procedure for permission to withdraw the suit with liberty to file a fresh suit. The basis of the application was that as the land had been acquired by the State Government the suit must fail by reason of a formal defect inasmuch as the State was not a party to the suit. The learned Subordinate Judge allowed the application and by his order dated October 3, 1974 dismissed the plaintiff's suit granting permission to file a fresh suit.
3. In this revision petition, learned counsel for the defendant-petitioner urges that the conditions of Order 23 Rule 1 (2) of the Code are not satisfied. It is lurged that having regard to the pleadings in the case the State Government was a necessary party, and therefore it cannot be said that it was by reason of a formal defect that the suit was liable to fail. The omission to implead a necessary party, it is urged, is not a formal defect, and support is taken from Tarachand Bapuchand v. Gaibihaji Ahmed Bagwan, AIR 1956 Bom 632 and Ram Padarath v. Data Din, AIR 1941 Oudh 417. There is force in the contention. The omission to implead a necessary party cannot be described as a formal defect. It is a material defect. Consequently, the learned Subordinate Judge erred in applying the provisions of Order 23 Rule 1 (2) of the Code of Civil Procedure and making the order which he has.
4. The revision petition is allowed. The order dated October 3, 1974 made by the learned Subordinate Judge, Kangra, is set aside, As no one has appeared in opposition to this revision petition, there is no order as to costs.