Kalyan Rai Surana, J.

1. Heard Mr. G. Baishya learned counsel for the petitioner. None appears on call for the respondent. Notice has been duly served on all the respondent as per the order dated 27.06.2013 passed by the Lawazima Court. By filing this application under Article 227 of the Constitution of India the petitioner has challenged the order dated 21.09.2012 passed by the learned Civil Judge, (Junior Division No. 1), Lakhimpur, North Lakhimpur in Title Suit No. 29/2011.

2. By the said order the learned Trial Court had allowed the respondent/plaintiff to withdraw Title Suit No. 29/2011 with liberty to file afresh. The learned counsel for the petitioner has referred to a copy of the written statement/counter-claim filed by the petitioner/defendant before the learned Trial Court on 24.02.2011.

3. It is submitted that the counter-claim of the petitioner was on record and that even if the suit is permitted to be withdrawn, the counter-claim filed by the petitioner/defendant cannot be wished away.

4. The learned counsel for the petitioner further submits that the suit can be permitted to be withdrawn on two conditions as provided in Order XXIII Rule 1(3) which provides that the Court is satisfied (a) that a suit must fail by reason of some formal defect, or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 plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.

5. It is submitted that prior to filing of this application for withdrawal of the suit, the respondent/plaintiff had moved the Trial Court by filing an application for amendment, inter-alia to amend the schedule of the suit land. The learned Trial Court by order dated 17.7.2012 rejected the prayer for amendment arid thereafter on 10.09.2012 the respondents had submitted a petition No. 1054/12 to withdraw the suit

6. In the impugned order dated 29.1.2012, the learned Trial Court duly recorded the submission made by the respondent/plaintiff and by considering the rival submissions made in the matter, and the prayer of the plaintiff was allowed. It is submitted that the learned Trial Court failed to record any reason why it arrived at a finding that the suit was vitiated by a formal defect and, as such it is submitted that the impugned order suffers from the defect of non-consideration of the provision of Order XXIII Rule 1(3) CPC.

7. The impugned order is also assailed on the ground that there is no recording of satisfaction that the suit must fail by reason of some formal defect and there is no satisfaction of the Court is recorded for allowing the respondent/plaintiff to institute a fresh suit for the subject matter of the present case i.e. T.S. No. 29/2011 as well as on the ground that no specific order was passed to proceed with the counter-claim. In support of his contention, the learned counsel for the petitioner has relied on the case of Rabizul Ali Laskar & Ors. Vs. Saibur Raza Laskar & Ors., 2002 (2) GLT 169. Paragraph 10 thereof on which reliance has been placed is extracted herein below:-

"(10). In AIR 1957 Mad. 207 (Sambanda Naioker and others Vs. Ranganayaki Ammal and another) (supra) the Madras High Court while considering the import of Order 23 Rule 1(3)(a) and (b) CPC observed that in order to pass an order in favour of withdrawal of a suit a Court must be satisfied that sufficient grounds exist for the same. In the case reported in AIR 1986 Mad. 341 (A.V.S. Perumal Vs. Vadivelu Asari) (supra), it was observed that in order to succeed in an application filed under Order 23 Rule 1(3) CPC, the Court has to be satisfied about requirements mentioned therein. Their lordships held that it was not permissible to allow the plaintiff in that case to withdraw the suit with a liberty to file a fresh suit, as the prescribed requirements were not fulfilled. Their Lordships of the Orissa High Court in AIR 1989 NOC 193 (Orissa) observed that "formal defect" is a defect in form and procedure and not a defect in substance or touchin