The main legal point established in the judgment is the distinction between formal and substantial defects in the context of Order XXIII, Rule 1(3), Civil Procedure Code, particularly in relation to the impleadment of necessary parties in a partition suit.

This revision application under section 115, Civil Procedure Code has been filed at the instance of plaintiffs against the order dated 18-7-2012 passed by learned Second Civil Judge, Class-II, Gadanvara, District Narsinghpur in Civil Suit No. 38-A/2010 whereby the application under Order XXIII, Rule 1(3), Civil Procedure Code filed on behalf of the plaintiff-applicants has been dismissed.

2. The present applicants are the plaintiffs. A suit for declaration that the plaintiffs are having ½ share in the suit property and accordingly they are entitled for getting the property in question partitioned and for separate possession has been filed by the plaintiffs arraying Gangaram as first defendant and State of M. P. as formal defendant No. 2. According to the plaintiffs, the land in question belonged to Late Baliram who was having two sons, namely, Gangaram (first defendant) and Ramprasad (dead). The plaintiffs are the daughters and the widow of the deceased Ramprasad. During the pendency of the suit it came into the knowledge of the plaintiffs that the first defendant Gangaram got the names of his sons Udham Singh, Ramsingh, Malkhan and Moolchand mutated in the revenue record and earlier this fact was not in their knowledge and therefore, the sons of first defendant could not be impleaded as defendants in the suit. This fact came into their knowledge only when this objection was raised by the first defendant in his written-statement. Eventually, on 4-1-2011 the plaintiffs filed an application to implead those persons as defendants but the said application was rejected. Thereafter, an application under Order XXIII, Rule 1(3), Civil Procedure Code has been filed by the plaintiffs praying that they be permitted to withdraw the suit with liberty to file fresh suit. Learned trial Court rejected that application. Hence, this revision has been filed by the plaintiffs.

3. By placing heavy reliance upon the single Bench decision of this Court Mst. Chhabili Dullaiya vs. Lallu in Second Appeal No. 218/1961 decided on 8-12-1964 which has been digested in 7965 MPLJ Note 99 it has been put forth by learned counsel for the applicants that a suit can be permitted to be withdrawn if it suffers from formal defect. Learned counsel submits that this decision was also in respect to partition suit and because some of the necessary parties could not be joined no effective decree of partition can be passed and therefore, this Court allowed the prayer to withdraw the suit with liberty to file fresh suit. The contention of learned counsel is that the aforesaid decision is squarely applicable in the present case because in the instant suit also the sons of first defendant were not joined as parties to the suit and therefore, it amounts to a formal defect and hence, learned trial Court by rejecting the application under Order XXIII, Rule 1(3), Civil Procedure Code has acted illegally with material irregularity in exercise of its jurisdiction. Hence, it has been prayed that by allowing this revision application the application under Order XXIII, Rule 1(3), Civil Procedure Code be allowed.

4. On the other hand, Shri Kaurav, learned counsel for the respondent No. 1 argued in support of the impugned order and submitted that if there is a defect of non-joinder or mis-joinder of necessary party this will not come within the ambit and sweep of 'formal defect' as envisaged under Order XXIII, Rule 1(3), Civil Procedure Code and therefore, rightly the application has been rejected by learned trial Court in that regard. In support of his contention learned counsel has placed heavy reliance upon the single Bench decision of this Court Vinod Kumar Gupta vs. Smt. Ramadevi Shivhare and another, 2008(2) MPLJ 151 = 2007 (III) MPWN 112. Hence, it has been prayed that this revision application be dismissed.

5. I have heard learned counsel for the parties. According to me, the provision envisaged under Order XXIII, Rule 1(3), Civil Procedure Code can be set in motion and