The court emphasized that non-joinder of a necessary party in a suit cannot be considered a formal defect and that there must be sufficient grounds to allow withdrawal of a suit with liberty to file a fresh suit.

This revision petition under Section 115 of the Civil Procedure Code has been directed against the order dated 10.6.96 passed by the learned Sadar Munsiff No. 2, Silchar in Title Suit No. 155 of 1992 rejecting the application filed by the petitioners-plaintiffs to withdraw the suit with a liberty to file a fresh suit.

2. I have heard Mr H.R.A. Choudhury, learned counsel for the petitioner and Mr S.A. Laskar, learned counsel for the opposite party.

3. The admitted facts are that the petitioners as plaintiffs filed Title Suit No. 155 of 1992 before the learned Court below praying for a decree inter-alia for declaration of their title in respect of the suit land as well as for confirmation of their possession thereof. They also prayed for a decree for permanent injunction in respect of the suit land. The opposite party-defendants appeared in the suit and filed their written statement inter-alia contending that suit was not maintainable on the ground of non-joinder of necessary parties keeping in view the issue to be decided, it is not necessary to go into the details of cases of the parties on merits.

4. The petitioners-plaintiffs during the pendency of the suit filed an application on 29.3.96 praying for necessary orders to allow them to withdraw the suit with a liberty to institute a fresh suit. In the said application the petitioners contended that the suit suffered from some formal defects and therefore it was necessary to withdraw the same with the liberty as prayed for. In the petition, the petitioners mentioned the formal defects as hereunder:-

1) The petitioners due to mistake had not mentioned in the plaint the following facts:-

a) Possession of a portion of the land of the suit patta covered by Dag No. 203 and 201 was taken by the State Government under the provision of Ceiling Act and thereafter an area of 1 Bigha 14 Katha 8 Chatak was reallotted to the petitioners.

b) All co-sharers of the patta ought to have been made parties.

c) An area of land measuring 2 Katha 12 Ch. in Dag No. 289 of the suit patta stood in the name of Wakf with a Mosque thereon.

2) State of Assam was a necessary party and that'the suit was filed without service of notice-under Section 80 CPC.

5. A written objection to the said application was filed on behalf of the opposite party-defendants wherein they inter-alia contended that the application was barred by the principle of res-judicata. They further contended that the defects mentioned in the application were not formal defects and would go to the root of the case and therefore could not be taken in isolation for the purpose of granting permission to withdraw the suit and granting liberty to file a fresh suit. The opposite party-defendants in their written objection categorically contended that the defect of non-joinder of parties cannot be said to be a formal defect in any view of the matter and therefore the application was early not tenable in law. It was inter- alia stated in the petition that similar petition on same places had been submitted earlier and the learned trial Court after hearing both the parties had rejected the same.

6. The learned trial Court after considering the application and the written objection filed and after hearing the parties by the impugned order rejected the same holding that the defects pointed out in the application were not formal defects and that there was also no other sufficient ground to entertain the prayer made on behalf of the petitioners.

7. Mr H.R.A. Choudhury, learned counsel for the petitioners has argued that the defects mentioned in the application rejected by the learned trial Court are all formal defects keeping in view the frame and character of the suit and therefore the learned trial Court erred in law in passing the impugned order. In support of his contention the learned counsel has placed reliance on several decisions of different High Courts as well as Supreme Court namely AIR 195 7 Madras 207 (Sambanda Naieker and other