JUDGMENT B.P. Dharmadhikari, J.
1. In this Civil Revision under Section 115 of the Civil Procedure Code, challenge is to the order dated 15-12-1997 passed by 2nd Joint Civil Judge (Junior Division) Khamgaon, District Buldhana in Regular Civil Suit No. 40 of 1997 instituted by present respondent permitting him to withdraw said suit with liberty to file fresh one.
2. I have heard Advocate Shri Paliwal for Revision applicant. Nobody has appeared for respondent though served. Advocate Paliwal has invited attention to impugned order and also to the provisions of Order 23 Rule 1 of Civil Procedure Code to contend that the Court below has exercised jurisdiction not available to it. He argues that failure to claim relief or defect in drafting of plaint is not in defect of formal nature so as to enable the Court to exercise powers under said provision. In support he has placed reliance upon judgment of Hon'ble Apex Court reported at AIR 2000 SC 2132 between K. S. Bhoopathy v. Kokila.
3. Perusal of impugned order reveals that the defects pointed out by present respondent in his application under Order 23 Rule 1 are about the drafting of plaint by his counsel, mis-joinder of the parties, non-payment of proper Court fees, non-valuation of suit property and not claiming proper reliefs. The suit is for declaration and injunction with grievance that defendant has committed encroachment on property of present respondent. It is plaintiffs case that the defendant/present revision applicant encroached upon portion of his property in his absence on 21-2-1997 but relief for declaration about encroachment, its extent, restoration of possession and return of material illegally taken away by defendant as also relief of permanent injunction are not sought for inadvertently. It is contended that therefore suit suffers from material defects which cause prejudice to plaintiff and hence he should be permitted to withdraw it with liberty to file fresh on same cause of action. It is also added that defects are of formal nature. The revision applicant opposed withdrawal on the ground that he had already filed written statement and disclosed his defence. The defendant pointed out that two separate applications were moved by plaintiff for amendment of plaint and same were opposed by defendant. The trial Court while passing the impugned order only mentioned , AIR 1971 Maysore 334, , AIR 1989 NOC (Orism) 193, . However it held that except AIR 1989 NOC (Orissa) 193 the other rulings were not relevant because there the applications moved under Order 23 Rule 1 at fag end of the trial have been considered. So far as AIR 1989 NOC (Orissa) 193 is concerned, it observed that withdrawal of suit cannot be permitted if by amendment the defect can be remedied. Thereafter it found that the counsel for plaintiff did not draft the plaint properly and applications for amendment moved by him were also not proper. It found that the present respondent/plaintiff was not at fault and he was not properly guided by his advocate. It further found that though amendment is possible, the plaint required major changes. It found that amendment of plaint will not be sufficient and as case of plaintiff came within four corners of Order 23 Rule 1, his application deserved to be allowed. It therefore permitted present respondent to. withdraw his suit with liberty to file fresh suit on same cause of action subject to costs of Rs. 300/- only.
4. It is therefore necessary to find out whether the defects mentioned by respondent above are defects of formal nature as envisaged by Order 23 Rule 1, Civil Procedure Code. In AIR 2000 SC 2132 K. S. Bhoopathy v. Kokila. In said matter the plaintiffs filed a suit and sought relief, inter alia, of injunction against defendants restraining them from establishing and running a flour mill on their property and for further injunction restraining them from disturbing the plaintiffs' exclusive user of the pathway lying between the properties of the plaintiffs on one side and defendants on the other. Defendants in the suit as owners sold portions of their land by separate sale deeds executed in favour of plaintiffs. It was the case of the plaintiffs that establishment of the proposed flour mill by the defendants would be a nuisance and would seriously prejudice the plaintiffs' user of their property on which they have constructed a clinic. Regarding the pathway the case of the plaintiffs was that they have exclusive right of user of the same and the plaintiffs should not be permitted to interfere with their right in any manner. The trial Court decreed the suit holding inter alia that the plaintiffs' have an exclusive right of user over the pathway. The trial Court also accepted the case of the plaintiffs' in respect of the prayer for injuncting contesting defendants from establishing a flour mill on their property. On appeal first Appellate Court modified the decree relating to the pathway holding that the plaintiffs have no exclusive right of user of the pathway and all the parties were entitled to use the same as it was a common pathway. The plaintiffs filed the second appeal, and before said appeal was admitted the plaintiffs filed an application under Order 23, Rule 1(3), Civil Procedure Code seeking permission of the Court to withdraw the suit with leave to file a fresh suit as no prayer for declaration of plaintiffs title over the pathway was made in the plaint and in view of the cloud raised against their exclusive title and right of user in the judgment of the lower appellate Court, it was necessary to withdraw the suit and file a fresh suit properly constituted and seeking appropriate relief. The application filed by the plaintiffs was allowed by the High Court. The Hon'ble Apex Court found that the High Court could not be said to have considered the relevant aspects of the matter. High Court's approach had been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Hon'ble Apex Court observed that such an approach would be clearly erroneous. It is the duty of the Court to feel satisfied that there exist proper grounds and reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied by merely stating that grant of permission will not prejudice the defendants. As per this judgment, in case such permission is granted at appellate or second appellate stage, prejudice to defendant is writ large as he loses the benefit of the decision in his favour in the lower Court. Thus the order of the High Court granting permission for withdrawal of the suit with permission to file fresh suit was held liable to be set aside by Hon'ble Apex Court. Here, In view of the judgment. AIR 1989 NOC (Orissa) 193, the learned trial Court found that present respondent could have amended his plaint instead of withdrawal and then found that plaint required major amendment. It thereafter found that no prejudice would be caused to present revision applicant. However, it failed to find out whether the ground put forth before it was sufficient to invoke jurisdiction under Order 23 Rule 1, Civil Procedure Code to grant such permission to present respondent. Thus, error committed by it is same and failure to exercise jurisdiction is apparent.
5. Hon'ble Full Bench of this High Court in AIR 1940 Bombay 121 Rammo Bhagwanrao v. Ban Appanna, the Hon'ble Bench has considered position prevailing before the Civil Procedure Code was enacted in 1859 and several cases on the point. While construing Clause (a) and Clause (b) of Order 23 Rule 1 it has been held that the two clauses are required to be read together and one has in Clause (a) an illustration of the sort or reason which the Legislature thought would be sufficient, and in that way Clause (a) may, to some extent, limit the generality of the words in Clause (b). It is observed that Clause (a) is illustrative of the "grounds" referred to in Clause (b), and although the "grounds" need not be ejusdem generis with the ground mentioned in Clause (a), they must be "at least analogous" to it. The ground in Clause (a) requires that suit must fail by reason of some formal defect; whereas the grounds contemplated in Clause (b) need not necessarily be fatal to the suit, but must be analogous to formal defect. It is further held that the formal defects include mis-joinder of parties or of matters in the suit, rejection of a material document for not having a proper stamp, erroneous valuation of subject matter of suit. It has been held that expression "formal defect" must be given wide and liberal meaning, and must be deemed to connote every kind of defect which does not affect the merits of the case, whether that defect be fatal to the suit or not. In the facts of case before Hon'ble Full Bench, opponents were allowed to withdraw suit in appeal after trial Court held that they failed to prove that the site was an alluvion. They wanted to withdraw the suit in order to file another claiming title to the said site and it was held that it was no defect of form but a defect of substance arising out of their inability to prove the title on which they had based their claim and in allowing the suit to be withdrawn on this ground, the Assistant Judge acted without jurisdiction.
6. In Tarachand v. Gaibihaji, Hon'ble Shri Gajendragadkar J. (as he then was) held that the non-joinder of parties or failure to make proper claim is not a formal defect. The Appellate Judge was told that as the plaintiff had failed to attack the mortgage decree and parties to the mortgage were not impleaded in the suit, there was formal defect and on that ground the suit was allowed to be withdrawn with liberty under Order 23 Rule 1. It has been observed that plaintiff was fighting against auction purchaser who was trying to recover possession and plaintiff's purchase was affected by lis pendens and the suit filed was with full knowledge that the auction purchaser was seeking to enforce his rights as such, and still no allegations were made in plaint that mortgage decree was not binding upon him and no relief was claimed in that behalf. It is observed by this Court that failure to make this claim and failure to implead parties in respect of the claim cannot be regarded as formal defect which is fatal to the suit. The appeal was therefore restored to the file of Appellate Court and plaintiff was given leave to apply for amendment in plaint.
7. In the facts of present case also, it cannot be said that there was any fatal defect of form in the suit. All the defects pointed out by the respondent/plaintiff could have been cured by moving appropriate amendment application. In view of facts pleaded, the original plaintiff could have asked, for appropriate declaration and injunction along with relief for restoration of possession and return of material. The defect about valuation of suit property or suit or payment of Court fee is never treated as defect which cannot be rectified. In fact, the plaintiff appears to have moved two amendment applications but their fate is not disclosed in the impugned order. AIR 1989 NOC (Orissa) 193 cited before the lower Court expressly states that the withdrawal of suit cannot be permitted since amendment of plaint to incorporate necessary reliefs can be sought for. Here though the law is noticed, on the ground of no prejudice only to the present revision applicant, suit has been allowed to be withdrawn. Hence, it is apparent that the Court below has exercised jurisdiction not available to it by permitting the respondent to withdraw suit with liberty to file fresh one on same cause of action.
8. The impugned order is, therefore, quashed and set aside. Civil Revision Application is allowed. Rule is made absolute in above terms. There shall be no order as to costs.