A court has the power to grant leave to withdraw a suit under Order 23 Rule 1(2) of the Code of Civil Procedure, even if the plaintiff has failed to formally prove a document, provided that the failure is a formal defect and not a defect of substance.

1. This is an appeal by Defendants 4 and 5 from the order dated 20-2-1948 passed by Hidayatullah J. in second appeal, granting to the Plaintiff (Respondent 1), who was the Appellant then before him, leave to withdraw from the suit with liberty to institute a fresh one.

2. It appears that the Plaintiff's suit was based on the allegation that she had revoked a deed of gift executed by her in favour of her brother, who is one of the Defendants to the suit. A certified copy of that deed of gift had been placed on the record, but it appears that due to a technical mistake of the lawyer conducting the case on her behalf notice was not given to the Defendants to produce the original deed of gift. The Plaintiff was examined as the first witness on her behalf, and she admitted having executed the deed of gift. As a matter of fact, the execution of the deed of gift had not been a matter in issue between the parties. But, all the same, as Plaintiff she had formally to prove the document by serving a notice on the party who was expected to be in possession of the original deed and on his failure to produce the same in Court to depose that she had executed a deed to that effect.

The position therefore was that a certified copy of the deed of gift had been brought on the record, though not formally proved because of the defect in not calling upon one of the Defendants to produce the original in Court, and the executant of the deed had deposed in Court that she had executed a deed of gift. Perhaps the document could not be marked as an exhibit in the case because of the formal defect already indicated, viz., that notice had not been served on one of the Defendants who being the donee would, in the ordinary course, be expected to be in possession of the original deed. It would be necessary for the Plaintiff to prove the terms of the deed of gift, particularly if there was any power to revoke it, and as the deed had not been formally proved the suit stood dismissed in both the Courts below. On second appeal in this Court the learned Single Judge, after hearing both the parties gave the permission applied for, to withdraw from the suit with liberty to bring a fresh one. It is this order which is the subject-matter of this appeal.

3. The learned Judge of this Court has made pointed reference to his decision in Civil Revn. No. 407 of 1946 which is now Satyanarayan v. Chotelal, 1948 ILR(Nag) 966 in which he has discussed some of the cases bearing on the question whether leave should or should not be granted in terms of Rule 1 of Order 23, Code of Civil Procedure. Sub-rule (2) of Rule 1 lays down that if there is a formal defect by reason of which the Plaintiff's suit must fail, the Court may grant the Plaintiff permission to withdraw from the suit with liberty to institute a fresh one. In this case the learned Judge relied upon the observations made in his previous decision referred to above and held that it was a fit case in which the powers of the Court under Order 23, Rule 1(2), Code of Civil Procedure should be exercised in favour of the unsuccessful Plaintiff. The learned Judge in the reported case has rightly pointed out the difference between a formal defect and a defect of substance.

4. The learned Counsel for the Appellants has particularly relied upon the decisions in - Mahabir Prasad v. Mohamed Ali Khan, 1927 AIR(All) 704, - Venkataramayya v. Veeraswami, 1925 AIR(Mad) 617 and - Thakur Prasad v. Rasool Bux, 1950 AIR(All) 489 for his contention that the Plaintiff's failure to prove his case or a part of his case or even to prove a particular document on which he mainly relied would not be covered by the provisions of Order 23, Rule 1(2), Code of Civil Procedure. In so far as those rasps lay down that the failure to substantiate his case should not entitle the Plaintiff to the leave required under the provisions of that rule, we respectfully concur. But in the matter of proof also a distinction must be made between a formal proof and a