A defect that goes to the root of the plaintiff's case and affects its merit cannot be considered a formal defect under Order 23, Rule 1, sub-rule (2) of the Civil P.C.

ORDER:- This application under Section 115 of the Code of Civil Procedure by the defendant is directed against the order dated 14-9-1970 passed by the Sadar Munsiff, Gauhati in Title Suit No.41 of 1961, allowing the plaintiff to withdraw the suit. The material facts, necessary for the purpose of disposal of this application, briefly are that the plaintiffs brought the suit against the defendant for eviction and recovery of khas possession of the suit land. During the pendency of the suit, plaintiff No.1 died and some of his heirs were not brought on record in time. When the surviving plaintiffs made an application for substitution of the heirs of the deceased plaintiff, the defendant filed an objection alleging that the suit had abated. The plaintiffs then made a prayer before the Court for permission to withdraw the suit with permission to file a fresh suit and the learned Munsiff allowed the plaintiffs to withdraw the suit on payment of Rs.20/- as costs to the defendant with the permission to bring a fresh suit holding that the defect for which the plaintiffs sought to withdraw the suit was "a formal defect".

2. The defendant-petitioner challenges the order of the learned Munsiff on the ground that the defect in question was not a formal one and therefore he exercised jurisdiction in according the permission to withdraw the suit with permission to bring a fresh suit with material irregularity.

3. The only question that falls for consideration is whether the omission to substitute the heirs of the deceased plaintiff is a formal defect within the meaning of Order 23, Rule 1, sub-rule (2) of the Civil P.C. Order 23, Rule 1(2) is as follows:-

"(2) Where the Court is satisfied-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim.

It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim".

It appears from the order of the learned Munsiff that he accorded the permission under clause (a) of sub-rule (2).

4. Mr. S.K. Sen, learned counsel appearing on behalf of the defendant-petitioner, submits that as the suit in question was an ejectment suit and as the heirs of plaintiff No.1 were not brought on record in time, the suit abated and as such the defect in not bringing the heirs of the deceased plaintiff was not a formal defect, and he refers to Order 22, Rule 3 of the Civil P.C. which, inter alia, provides that if an application is not made within the time limited by law, under sub-rule (1) of R.3, the suit abates so far as the deceased plaintiff is concerned. Whether the suit abates or not needs investigation and depends upon facts and circumstances of each case; and it is not necessary for me to hold in this application whether the suit has abated. In my opinion, when a defect goes to the root of the plaintiffs case and affect its merit, it cannot be a formal defect and the omission on the part of the plaintiff to substitute the heirs of the deceased plaintiff is not such a defect.

5. Mr. B.K. Goswami, learned counsel appearing on behalf of the plaintiffs submits that even if the impugned order is not covered by clause (a) of sub-rule (2) of O.23, it may be covered by sub-r.(b), if there are sufficient grounds which justify the impugned order of the Munsiff. It is true that if the impugned order can be justified under clause (b), this Court may not quash the impugned order even if it was passed under Cl.(a). But Mr. Goswami has not been able to point out any "sufficient ground" which justifies the impugned order of the learned Munsiff.

6. In the circumstances, the impugned order of the learned Munsiff cannot be sustained and is quashed. The rule is made absolute. I however make no order as to costs.