GAHC010016402022

2026:GAU-AS:301

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : CRP/14/2022

TAREK AKHTAR ANSARI AND ANR

S/O- LATE GHULAM SAMDANI ANSARI, R/O- N.B. ROAD WARD NO. 9, TEZPUR, P.O. AND P.S. TEZPUR, DIST.- SONITPUR, ASSAM, PIN- 784001.

2: MD. TABASSUM JAHAN ANSARI

D/O- LATE GHULAM SAMDANI ANSARI

R/O- COLLEGE ROAD BISWANATH CHARIALI

P.O. BISWANATH CHARIALI

DIST.- SONITPUR

ASSA

VERSUS

ON THE DEATH OF LATE MD SAUKAT ALI HIS LEGAL HEIRS SAMSUDDIN

HUSSAIN AND ORS SONITPUR, ASSAM

1.1:SAMSUDDIN HUSSAIN S/O LATE MD SAUKAT ALI

R/O VILLAGE BOITHABHANGA

P.O. GHORAMARI. PIN- 784105

SONITPUR

1.2:HAZRA KHATUN

D/O LATE MD SAUKAT ALI

R/O VILLAGE BOITHABHANGA

P.O. GHORAMARI. PIN- 784105

SONITPUR

2:DHAKUALI MUSLIM PANCHAYAT

C/O- BORA MASJID ROAD

P.O. AND P.S. TEZPUR

DIST. SONITPUR

ASSAM

PIN- 784001 Advocate for the Petitioner : MR. L R MAZUMDER, MR G N SAHEWALLA,MR M SAHEWALLA,MS. S. TODI,MS T J SAHEWALLA,MS K SARMA,MR. A ISLAM,MR G N SAHEWALLA,MR. A Z AHMED Advocate for the Respondent : MR. P BORAH (R-2), MS D DEVI,MR. D MOZUMDER BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA

ORDER

Date : 08-01-2026 Heard Mr. G.N. Sahewalla, the learned senior counsel assisted by Ms. K.

Sarma, the learned counsel for the appellants. Also heard Mr. D. Mozumder, the learned senior counsel assisted by Mr. C. Gogoi, the learned counsel for the respondents.

2. This is an application filed under Article 227 of the Constitution of India against the impugned order dated 03.12.2021 passed by the learned Munsiff No. 1 in Misc.(J) Case No. 71/2020 in connection with T.S. No. 17/2017 whereby the prayer for withdrawal of the suit with a liberty to file afresh was rejected by the learned Trial Court below.

3. It is submitted by Mr. Sahewalla that the petition was filed by the present petitioner/plaintiff praying for withdrawal of the Title Suit No. 17/2017 as there was formal defects in the said suit. In the application for withdrawal, the petitioner had categorically mentioned the formal defects amongst the others for which, the petitioner prayed for withdrawal of the same with liberty to file afresh. But, vide order dated 03.12.2021 passed in Misc.(J) Case No. 71/2020 had rejected the prayer for withdrawal with the observation that the defects which have been brought in the petition cannot be considered as a formal defect to withdraw the case with a leave to file afresh for the same subject matter.

4. Mr. Sahewalla further submitted that earlier another set of counsel was engaged by the petitioner but, the said set of counsel has returned the brief and thereafter only the present set of counsel was engaged in the case. But, on perusal of the record and the plaint it has come to the notice of the counsel that there are some formal defects in the case and accordingly it is necessary to withdraw the case with a prayer for file afresh. But, the learned Trial Court failed to appreciate the fact that the earlier error or defect which has been brought in the petition are the formal defects and passed the order considering that the non-joinder of parties or non-identification of the land etc., cannot be considered as the formal defects and accordingly the prayer for withdrawal has been rejected by the learned Trial Court below. While passing the order, the learned Trial Court also relied on a decision of the Hon’ble Calcutta High Court which is reported in 2001 (2) CCC 30/33 (Cal)

5. Mr. Sahewalla further submitted that if the plaintiff has failed to describe the suit land properly or if the suit is bad for non-joinder of necessary parties etc., can be considered as the formal defects. But, the learned Trial Court below did not consider those facts of the case and passed the order arbitrarily and hence the same is liable to be set aside and quashed and the petitioner may be allowed to withdraw the suit with a liberty to file afresh. In that context Mr. Sahewalla also relied on a decision of Hon’ble Supreme Court reported in (2017) 5 SCC 63 [V. Rajendran