( 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 Honble Apex court reported at AIR 2000 SC 2132 between K. S. Bhoopathy vs. 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

Click Here to Read the rest of this document