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IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 14806 OF 2023M/s. Lahoti Proeprties,Registered Partnership FirmThrough its PartnerAjay s/o Shriniwasji Lahoti,Age 54 years, Occu.Business,R/o Lahoti Compound,Dayaram Road, LaturDist. Latur....Petitioner(Original Defendant)~ versus ~Gangabhishan s/o Madangopal BhutadaAge 53 years, Occu. Business,R/o Dwarkanagari, Lahoti Compound,Dayaran Road, Latur, Dist.Latur....Respondent(Original plaintiff) ________________________________________APPEARANCE : Advocate for the Petitioner : Mr. Swapnil S. RathiAdvocate for Respondent : Mr. Zabiullah Z. Hussaini________________________________________CORAM :ARUN R. PEDNEKER, J.Reserved Date : 19/03/2024Pronouncement Date :08/05/2024JUDGMENT :1.Rule. Rule made returnable. With consent of the parties, heardfinally.2. By way of the present petition, the petitioner is challenging theimpugned order dated 21/10/2023, passed by the Civil Judge, SeniorDivision, Latur below Exhibit 31 in Special Civil Suit No.482/2022, wherebythe plaintiff /respondent herein was allowed to withdraw the civil suit withliberty to file fresh suit on the same cause of action.Page 1 of 19 Writ Petition No. 14806-2023 Judgment3.Brief facts leading in filing of the petition are summarized asunder :-The respondent /plaintiff filed Special Civil Suit No.482/2022 seekingrecovery of possession of landed property from the defendant/ petitionerherein and alternatively for a decree of recovery of amount ofRs.2,61,52,000/- with future interest @ of 15% per annum. It iscontended by the plaintiff in the suit that he along with other relatives areowners and possessors of the different portions of lands situated at villageKhadgaon, District Latur admeasuring 4 H 96 R. It is further contended inthe plaint that the partners of original defendant firm/ present petitionerhad approached the land owners with request to enter into developmentagreement in respect of the suit lands. It is the case of the originalplaintiff that he along with other owners had executed developmentagreement in favour of petitioner firm and they have received earnestamount of Rs.3,20,00,000/-. It is further contended that the actual workof development of land could not materialise, as such, petitioner haddecided to purchase entire land for valuable consideration and the earnestamount paid would be adjusted in the sale transaction. Thereafter aregistered sale deed was executed on 29/11/2017 in favour of thepetitioner/defendant, however, the cheques issued in consideration foramount were dishonoured. As such, the plaintiff prayed for cancellation ofthe sale deeds and possession of the property. The plaintiff further prayedPage 2 of 19 Writ Petition No. 14806-2023 Judgmentfor recovery of amount of Rs.2,61,52,000/- with future interest inalternatively.4. The said suit was contested by filing a written statement. In t hewritten statement, the defendant raised various objection to the suit. Inview of the objections raised by the defendant, the plaintiff filed applicationat Exhibit 25 seeking permission to withdraw the pending suit and to file afresh suit against the same defendant on the same cause of action. Thesaid application was contested and was rejected. Thereafter, anotherapplication Exhibit 31 was filed for similar relief for withdrawal of SpecialCivil Suit No.482/2022 with liberty to file a fresh suit against the samedefendant on the same cause of action. The said application was alsocontested by the defendant, however, same is allowed by the Trial Court,against which the present writ petition is filed.5.The learned Advocate for the petitioner contends that once theapplication Exhibit 25 was rejected, a second application Exhibit 31 couldnot have been allowed. It is further contended that there are no formaldefects in the suit and no sufficient grounds were made out as requiredunder Order 23 Rule 1 of the Code of Civil Procedure so as to enable theplaintiff to file the suit on the same cause of action.6.The learned Advocate for the petitioner relies up on the Judgment ofPage 3 of 19 Writ Petition No. 14806-2023 Judgmentthis Court in Veerbhadrappa s/o Mahadappa Rachatte vs.Mahalingappa s/o Gurlingappa Karanje, reported in 2009 (4)Mh.L.J. 108, and contends that the plaintiff has to disclose nature offormal defects in application, and if the application remain silent on thismaterial point, such application cannot be entertained by the Court.7.The learned Advocate for the petitioner relies upon the Judgment inRajaram s/o Jairam Raut vs. Baliram s/o Laxman Raut, reportedin 2006 (2) Mh.L.J., 693, and contends that all defects are such thatthey can be cured by plaintiff by moving appropriate amendmentapplication, and that the permission for withdrawal of suit with liberty tofile a fresh suit on the same cause of action, cannot be granted.8.The learned Advocate for the petitioner relies up on the Judgment inK. S. Bhoopathy and others vs. Kokila and others, reported in AIR2000 Supreme Court 2132, to contend that merely stating that thegrant of permission would not prejudice defendants is not compliance ofthe statutory mandate of Order 23 Rule 1 (3) of the Code of Civilprocedure.9.Further the learned Advocate for the petitioner relies upon theJudgment in case of Babybai w/o Sakharam Pardeshi and Anothervs. Ganesh s/o Asaram Sawant, reported in 2013(6) Mh.L.J. 328,Page 4 of 19 Writ Petition No. 14806-2023 Judgmentwherein it is held that the ‘formal defect’ meaning defect which does notaffect the merits of the case and the defects pointed out in that casecannot be considered as a ‘formal defect’.10.Per contra, the learned Advocate appearing for the respondentsubmits that the earlier application which was filed at Exhibit 25 wasdismissed by the Court as in the said application it was pleaded that forsome technical reason the plaintiff do not want to proceed further with thesuit, and as such, he wants to withdraw the civil suit with liberty to preferfresh suit on the same cause of action. The said application was rejectedby holding that the technical reasons are not disclosed seeking withdrawalof the suit and unless reasons are specified, plaintiff’s claim cannot beaccepted, considering the provision of Order 23 Rule 1 (3) of CPC,application filed by the plaintiff at Exhibit 25 was rejected. 11.The learned Advocate for respondent further submits that sinceapplication Exhibit 25 was rejected on technical ground, fresh applicationwas moved at Exhibit 31 giving entire grounds for withdrawal of the suit.In the application at Exhibit 31, paragraphs No.4, 5 and 8 reads asunder :-“4]That the defendant has raised the number of formaldefect in their said written statement (Exh.15). The defectsraised in the said written statement are as under : -a)Non disclosure and production of the registrationPage 5 of 19 Writ Petition No. 14806-2023 Judgmentparticulars of the partnership firm.b)Failed to make parties defendants to all thepartners of the firm who are the necessary parties.c)The property Gat No.4/5 has been wronglydescribed by the plaintiff.”“5]The plaintiff further submits that subject matter suitproperty forms a part and parcel of the sale deed dated27/11/2017, which is duly registered with the office of theSub Registrar, Latur at Sr. No.4588/2017. The said sale deedhas been made, executed and presented by the plaintiff andother four co-owner of the subject matter property in favourof the defendant firm M/s. Lahoti Properties Latur and its forupartners. The subject matter properties of the sale deedconsist of sanctioned layout plots, which are beingamalgamated by the individual plot holders belongs to plaintiffand four others.”“8]The formal defect exist in the present suit are asunder :-a)Non production of Registration Certificate of thedefendant firm under the Indian Partnership Act.b)Non-joinder of the all partners of the firm of thedefendant firm at the material time of sale deed dated27.11.2017 viz (a) Mr. Rajesh Shrinivasji Lahoti (b) Mr.Kamalnayan Shrinivasji Lahtoi (c) Mr. Anand Shrinivasji Lahotiand so also the present partners of the said firm.c)Non-joinder of other co-owners of the properties/vendors of the subject matter sale deed dated 27.11.2017viz.(a) Mr. Shrikant Dwarkadasji Bhutada, (b) Mr. ShriramPage 6 of 19 Writ Petition No. 14806-2023 JudgmentDwarkadasji Bhutada, (c) Mr. Balkishan DwarkadasjiBhutada, (d) Smt. Ushabai Damodarji Bhutada.”12.The learned Advocate appearing for the respondent further submitsthat in the subsequent application Exhibit 31, the petitioner has made outa detailed case for withdrawal of suit pointing out ‘formal defects’ andprayed for withdrawal of the suit for filing fresh suit for the same cause ofaction. He further submits that the Trial Court has correctly appreciatedthe facts and the law on the subject and has particularly observed thatwrong description of the property is a ‘formal defect’ within the meaning ofOrder 23 Rule 1(3) of the CPC. According to the plaintiff, he has claimedpossession of the suit bearing land Gut No.4/5 admeasruing 1 H 24 R,however, the said property has sanctioned lay out and the nature of theproperty changed and details regarding the plots are required to bebrought on record. Also considering the hardship caused to the defendantcost of Rs.2000/- is imposed and the permission for withdrawal of the suitis granted with liberty to file fresh suit on same cause of action. 13.Having considered the rival submissions, the issue that arises forconsideration is, whether the second application at Exhibit 31 wasmaintainable on the face of rejection of application at Exhibit 25 underOrder 23 Rule 1 (3) of CPC. The second issue arises for consideration isthat, whether in the fact the situation the Court was justified in grantingPage 7 of 19 Writ Petition No. 14806-2023 Judgmentpermission to withdraw the suit with liberty to file a fresh suit on the samecause of action.14.Perusal of order passed at Exhibit 25, paragraph No.9 would indicatethat the application is dismissed because the plaintiff has not mentionedsufficient grounds for allowing him to withdraw the suit and permission tofile a fresh suit on the same cause of action. As such, the statutorymandate is not complied by the plaintiff. The Trial Court at paragraphNo.9 of the order dated 21/07/2023 has observed as under : -“09.In the present case in hand the plaintiff has soughtwithdrawal of the suit on technical reasons, however, plaintiffhas not explained those reasons in the application. Therefore,in view of the observations in the ruling cited supra and inview of O.23 R.1 and 3 of the CPC, it becomes clear thatplaintiff has not mentioned sufficient grounds for allowing himto withdraw the suit with permission to file fresh suit on samecause of action. Therefore, it is clear that no proper groundsand reasons for granting permission for withdrawal of the suitwith permission to file fresh suit are given. As such, statutorymandate is not complied by the plaintiff.”15.Thus, the petitioner filed a fresh application giving the grounds ofwithdrawal of suit with liberty to file a fresh suit on the same cause ofaction. Therefore, it cannot be said that the second application giving theparticulars and the grounds for withdrawal would be barred. The firstapplication is dismissed on account of technical reason and not byPage 8 of 19 Writ Petition No. 14806-2023 Judgmentconsidering the merits of the ground that remain to be raised. As such,the second application cannot be said to be barred by principles of resjudicata.16.Relevant provision of C.P.C. required to be considered for decision ofthe application are noted below. Order 23 Rule 1 (1), (2) and (3) (a)(b) ofthe CPC are quoted below : -“1.Withdrawal of suit or abandonment of part of claim .--(1)At any time after the institution of a suit, the plaintiffmay as against all or any of the defendants abandon his suitor abandon a part of his claim :Provided that where the plaintiff is a minor or otherperson to whom the provisions contained in rules 1 to 14 ofChapter XXXII extend, neither the suit nor any part of theclaim 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 nextfriend and also, if the minor or such other person isrepresented by a pleader, by a certificate of the pleader to theeffect that the abandonment proposed is, in his opinion, forthe 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 theplaintiff to institute a fresh suit for the subject-matter of a suitor part of a claim, it may, on such terms as it thinks fit, grantthe plaintiff permission to withdraw from such suit or suchPage 9 of 19 Writ Petition No. 14806-2023 Judgmentpart of the claim with liberty to institute a fresh suit in respectof the subject-matter of such suit or such part of the claim.”17.Order 23 Rule 1 (3) of the CPC provides where the Court is satisfiedthat a suit must fail by reason of some formal defect, or that there aresufficient grounds for allowing the plaintiff to institute a fresh suit for thesubject-matter of a suit or part of a claim, it may, on such terms as itthinks fit, grant the plaintiff permission to withdraw from such suit or suchpart of the claim with liberty to institute a fresh suit in respect of thesubject-matter of such suit or such part of the claim.18.This Court in case of Babybai Sakharam Pardeshi (Supra), atparagraph No.14 which considering Order 23 Rule (1) of CPC has observedas under : -“14. The Supreme Court in the case of K.S. Bhoopathy andothers vs. Kokila and others [(2005) 5 S.C.C. 458] held that,the provision in Order 23 Rule (1) is an exception to thecommon law principle of nonsuit, sub rule (1) grants anabsolute liberty to the plaintiff, whereas under sub rule (3)the Court has the discretion to grant leave or not. It is furtherheld that, discretion of the Court is to be exercised withcaution and circumspection. All aspects of the matter are tobe examined, including the desirability or otherwise ofpermitting a fresh round of litigation on a cause of actionwhich has already been agitated.In Case of Somalaraju vs. Samanthu Sivaji GaneshPage 10 of 19 Writ Petition No. 14806-2023 Judgment[A.I.R. 2009 A.P. 12], it is held that, expression ‘formaldefect’ in the normal parlance connotes defects of variouskinds not affecting the merits of the case. Thus, a 'formaldefect' is a defect of form unrelated to the claim of theplaintiff on merits. The High Court, Bombay in the case ofTarachand Bapu Chand vs. Gaibihaji Ahmed [A.I.R. 1956Bombay 632] while interpreting provisions of Order 23 heldthat, failure to make a property claim and failure to impleadparties in respect of the claim cannot be properly regarded asa ‘formal defect’, which is fatal to the suit within the meaningof Order 23 Rule (1) of the Code of Civil Procedure.This Court in the case of Rajaram Jairam Raut (supra)held that, merely because no prejudice will be caused to thedefendant is not a ground for allowing withdrawal of the suit.In the said judgment in paragraph4 this Court has adverted tothe judgment of the Supreme Court in the case of K.S.Bhoopathy (supra) and observed that, it is duty of the Courtto feel satisfied that, there exist proper grounds and reasonsfor granting permission for withdrawal of the suit with leaveto file fresh suit by the plaintiffs and in such a matter thestatutory mandate is not complied by merely stating that,grant of permission will not prejudice the defendants.”19.In the case of Veerbhadrappa Mahadappa Rachatte (Supra),Single Bench of this Court while interpreting the Order 23 Rule 1 (3)(a) ofC.P.C. has observed that, the plaintiff to make out a ground seekingwithdrawal of the suit for presenting a fresh suit on same cause of action,the plaintiff is required to disclose nature of formal defect in the applicationPage 11 of 19 Writ Petition No. 14806-2023 Judgmentand if the application remains silent on this material point, such anapplication cannot be entertained by the Court.20.This Court in case of Rajaram Jairam Raut (Supra) has held thatall the defects that could have been cured by plaintiff by movingappropriate amendment application, permission for withdrawal of suit withliberty to file fresh suit on same cause of action cannot be granted.21.In case of V Rajendran and Anr. vs. Annasamy Pandian (D)Thr. LRs. Karthyayani Natchiar, reported in AIR 2017 SupremeCourt 685, the Hon’ble Supreme Court considered Order 23 Rule 1 (3)(a)of the CPC and at paragraph No.9, 10 and 11 observed as under : -“9. Order XXIII Rule 1(3) CPC lays down following grounds onwhich a Court may allow withdrawal of suit. It reads as under:R.1. Withdrawal of suit or abandonment of part of claim.- (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 plaintiffto institute a fresh suit for the subject-matter of a suit or partof a claim, it may, on such terms as it thinks fit, grant theplaintiff permission to withdraw from such suit or such part ofthe claim with liberty to institute a fresh suit in respect of thesubject-matter of such suit or such part of the claim. As per Order XXIII Rule 1(3) CPC, suit may only be withdrawnPage 12 of 19 Writ Petition No. 14806-2023 Judgmentwith permission to bring a fresh suit when the Court issatisfied that the suit must fail for reason of some formaldefect or that there are other sufficient grounds for allowingthe plaintiff to institute a fresh suit. The power to allowwithdrawal of a suit is discretionary. In the application, theplaintiff must make out a case in terms of Order XXIII Rule 1(3) (a) or (b) CPC and must ask for leave. The Court canallow the application filed under Order XXIII Rule 1 (3) CPCfor withdrawal of the suit with liberty to bring a fresh suit onlyif the condition in either of the clauses (a) or (b) that is,existence of a “formal defect” or “sufficient grounds”. Theprinciple under Order XXIII Rule 1 (3) CPC is founded onpublic policy to prevent institution of suit again and again onthe same cause of action.” “10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors. (2000) 5SCC 458 : (AIR 2000 SC 2132), it has been held that it is theduty of the Court to be satisfied about the existence of“formal defect” or “sufficient grounds” before grantingpermission to withdraw the suit with liberty to file a fresh suitunder the same cause of action. Though, liberty may lie withthe plaintiff in a suit to withdraw the suit at any time after theinstitution of suit on establishing the “formal defect” or“sufficient grounds”, such right cannot be considered to be soabsolute as to permit or encourage abuse of process of Court.The fact that the plaintiff is entitled to abandon or withdrawthe suit or part of the claim by itself, is no licence to theplaintiff to claim or to do so to the detriment of legitimateright of the defendant. When an application is filed underPage 13 of 19 Writ Petition No. 14806-2023 JudgmentOrder XXIII Rule 1(3) CPC, the Court must be satisfied aboutthe “formal defect” or “sufficient grounds”. “Formal defect” isa defect of form prescribed by the Rules of procedure such as,want of notice under Section 80 CPC, improper valuation ofthe suit, insufficient court fee, confusion regardingidentification of the suit property, mis-joinder of parties,failure to disclose a cause of action etc. “Formal defect” mustbe given a liberal meaning which connotes various kinds ofdefects not affecting the merits of the plea raised by either ofthe parties.”“11. In terms of Order XXIII Rule 1(3) (b) where the court issatisfied that there are sufficient grounds for allowing theplaintiff to institute a fresh suit, the Court may permit theplaintiff to withdraw the suit. In interpretation of the word“sufficient grounds”, there are two views: One view is thatthese grounds in clause (b) must be “ejusdem generis” withthose in clause (a), that is, it must be of the same nature asthe ground in clause (a) that is formal defect or at leastanalogous to them; and the other view was that the words“other sufficient grounds” in clause(b) should be readindependent of the words a ‘formal defect’ and clause (a).Court has been given a wider discretion to allow withdrawalfrom suit in the interest of justice in cases where such aprayer is not covered by clause (a). Since in the present case,we are only concerned with “formal defect” envisaged underclause (a) of Rule (1) sub-rule (3), we choose not to elaborateany further on the ground contemplated under clause (b) thatis ‘sufficient grounds’.” Page 14 of 19 Writ Petition No. 14806-2023 Judgment22.It is pertinent to note that in the same Judgment of V Rajendran(Supra) at paragraph No.12, the Supreme Court considered the aspect of‘formal defects’ that the plaintiff therein filed a suit describing the suitproperty as Survey No.192/9 but the respondents are said to havetransferred the patta for the suit property settling as Survey No.192/14.The defect in survey number of the suit property goes to the very core ofthe subject-matter of the suit and the entire proceedings would be fruitlessif the decree holder is not able to get the decree executed successfully,and thus, the said defect will constitute to be a ‘formal defect’ within themeaning of Order XXIII Rule 1 (3)(a) CPC. That apart the respondents aresaid to have executed an Inam Settlement Deed on 21/09/2012, in favourof their son Aranmanai Pandian, mentioning th suit property as SurveyNo.192/14. The Supreme Court held that they were convinced that thecase of the appellant would fall under clause (a) of Rule 1(3) of Order 23 ofCPC. Thus, uphold the order of the Trial Court permitting to withdraw thesuit and to file fresh suit on same cause of action. 23.It is also required to be noted that the Hon’ble Supreme Court incase of V. Rajendran and Anr. (Supra) held that the ‘formal defect’ is adefect of form prescribed by the Rules of procedure, for example, want ofnotice under Section 80 CPC, improper valuation of the suit, insufficientcourt fee, confusion regarding identification of the suit property, mis-Page 15 of 19 Writ Petition No. 14806-2023 Judgmentjoinder of parties, failure to disclose a cause of action etc. The SupremeCourt has further observed that the ‘formal defect’ must be given a liberalmeaning which connotes various kinds of defects not affecting the meritsof the plea raised by either of the parties.24.In the instant case, defects are pointed out by the defendant inwritten statement. In Paragraph No.4, 5 and 8 of the application filed bythe plaintiff, it is pointed out that the defendant has raised number offormal defects in their written statement are as regards non disclosure andproduction of the registration certificate, particulars of the partnershipfirm, failed to make party defendants to all the partners of the firm whoare the necessary parties, and the property Gat No.4/5 has been wronglydescribed by the plaintiff. The formal defects which are pointed out atparagraph No.8 are, non production of Registration Certificate of thedefendant firm under the Indian Partnership Act, non-joinder of the allpartners of the firm of the defendant firm at the material time of sale deeddated 27/11/2017, non-joinder of other co-owners of theproperties/vendors of the subject matter sale deed dated 27/11/2017.25.In the instant case, the description of the suit property is erroneousand the defect is formal in nature and can defeat the suit and givingliberally interpretation to the concept of ‘formal defect’, it cannot be saidthat the Trial Court has exercised its discretion erroneously. In the instantPage 16 of 19 Writ Petition No. 14806-2023 Judgmentcase, the withdrawal of application is filed at a very early stage and itcannot be said that the plaintiff is abusing the process of Court and noprejudice will be caused to the defendant although that alone is not theground but one of the factors that could be taken into consideration.26.The the law on the subject matter is that under Order 23 Rule 1 (3)(a) of CPC, if there is a ‘formal defect’ in the suit, withdrawal of suit ispermissible with liberty to file a fresh suit on the same cause of action.The defect pointed should not be pertaining to the merits of the matter andif there is an adjudication on the merits on the defects pointed out and thesuit could be defeated on the adjudication of the defects, such a defectcannot be said to be a ‘formal defect’. However, even on the adjudicationof the defects pointed out in the written statement and answered in favourof the plaintiff, the suit could be still be defeated for the reasons of some‘formal defect’ in the suit, in such a situation, the plaintiff is permitted towithdraw the suit and to file a fresh suit, on same cause of action. 27.In the instant case, it was pointed out to the Trial Court that there isa defect in the description of the suit property on account of subsequentsub-divisions of the land and there is a possibility that the suit may befrustrated on that count. The other defects pointed out were such that itcould have been cured by the plaintiff.Page 17 of 19 Writ Petition No. 14806-2023 Judgment28.The Trial Court has passed the order under Order 23 Rule 1 (3 (a)of CPC and this Court would not to interfere in the impugned order of thetrial Court for the following reasons :-(1)The defect relied upon by the Trial Court as regards thedescription of the suit property is a ‘formal defect’ and the same hasoccurred on account of further sub-divisions of the property and onaccount of plotting of the suit property.(2)The other defects pointed out to the Trial Court thoughcurable but the ‘formal defect’ is pointed out as regards descriptionof the suit property.(3)The relief under Order 23 Rule 1 (3) of CPC is a discretionaryrelief and the prayer being made at the first possible opportunityafter the written statement was filed, the Trial Court in exercise itsdiscretion has permitted the withdrawal of the suit and grantedpermission to file fresh suit on the same cause of action. Thediscretion exercised by the Trial Court cannot be said to beunreasonable. More so, when no prejudice is caused to thedefendant and the cost is imposed on the plaintiff for theinconvenience caused to the defendants.(4)The application for withdrawal of the suit with liberty to file afresh suit on the same cause of action cannot be said to be an abuseof process of law as the plaintiff has not been negligent in applyingfor withdrawal of the suit and filing the same on the fresh cause ofaction as the application is filed immediately after filing of thewritten statement.For all these aforesaid reasons, I deem it appropriate not toentertain the present writ petition and not interfere in the order passed byPage 18 of 19 Writ Petition No. 14806-2023 Judgmentthe Trial Court. 29.Thus, it cannot be said that there is grave injustice or that no causeis made out to withdraw the suit to file a fresh suit on the same cause ofaction. No case is made out to interfere in the order passed. The writpetition is dismissed. Rule is discharged. ( ARUN R. PEDNEKER, J. )vj gawade/-.Page 19 of 19