- (1.) THIS second appeal has been filed against the order of R. A. A. Jaipur dated 10-10-68 whereby the appeal of the appellants was rejected.
(2.) THE brief facts of the case are that the plaintiff-respondent filed a suit for declaration and permanent injunction in the court of the Assistant Collector Jaipur. During the proceedings, the plaintiff sought permission for the amendment of the plaint and before any order could be passed, another application was filed by the plaintiff with a prayer to withdraw the suit and file a fresh suit which was accepted by the trial court on payment of Rs. 25 to the defendant-appellants. An appeal against this order was filed by the defendants which having been rejected this second appeal has been filed before us. We have heard the counsel for the parties and examined the record. The learned counsel for the appellants argued that the plea that plaintiff did not understand the difference between a cotenant and sub tenant on account of which the plaint was not properly drafted and certain facts could not be incorporated therein is devoid of force as in the original plaint as also in the amended plaint the appellants were shown as cotenants of half of the land in dispute and in a compromise arrived at between the parties in a separate suit half of the land in dispute was given by the respondent to the appellants. He therefore argued that failure to claim proper relief is not a formal defect within the meaning of O. 23, R. 1 and, therefore, both the courts below have committed an illegality in granting the application for withdrawing the suit and filing a fresh one. He stated that leave to withdraw suit should not be granted if the defect could have been corrected by amendment of plaint. In support of his contention he cited the following ruling: A. I. R. 1953 Bhopal 33: A. I. R. 1914 Allahabad page 457; A. I. R. 1951 Madras 715; A. I. R. 1956 Bombay 632; R. L. W. 1952 page 425; A. I. R. 1967 Punjab page 237; A. I. R, 1950 Allahabad 489; The learned counsel for the respondent in reply contended that concurrent finding cannot be lightly interfered with and in support of his contention cited 1969 RRD page 133. The application of the plaintiff for withdrawing his suit and initiating a fresh suit was made under O. 23 Rule 1 of the Civil Procedure Code. A plain reading of the aforesaid provision reveals that the trial court may grant such permission if it is satisfied that a suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. The expression "formal defect" connotes defects of verious kinds not affecting the merits of the case. It means a defect of form which is prescribed by rules of procedure. A defect which goes to the root of the plaintiff's claim is not a formal defect. Likewise the expression "other sufficient grounds" should be construed ejusdem generis with "formal defects'. We have now to take into consideration whether the grounds taken in the application to withdraw the suit are covered by the above two expressions "formal defect" and "other sufficient grounds". The prayer of the plaintiff was that while drafting the original plaint he could not understand the difference between a "co-tenant" and a "bub-tenant" with the result that instead of sub-tenant the defendants were mentioned as co-tenants. It would be relevant to discuss the impact of the rulings cited by the learned counsel for the appellants. A. I. R. 1953 Bhopal 33 - It has been laid down that failure to claim proper relief is not a formal, defect within the meaning of O. 23, R. 1. So also where the plaint does not give full and clear statement of facts so as to ascertain the exact relief desired by the plaintiff, the defect is not formal but one of substance. Leave to withdraw suit should not be granted if the defect could have been amended by amendment of plaint AIR 1914 Allahabad 457 - The rule laid down is as follows "the omission by the plaintiff to include in his plaint all his causes of action, which are inconsistent with each other, cannot be said to constitute a formal defect in the suit and is not a sufficient ground to allow him to withdraw the suit with permission to bring a fresh one" A. I. R. 1951 Madras 7/5 - The learned Judge defining the scope of "other sufficient grounds" observed as under - "other sufficient grounds" in cl (b) has been interpreted to mean "grounds ejusdem generis to those mentioned in cl (a)" or at least analogous to them. Insufficient evidence, or a false genealogical table, or even the fraud of plaintiff's vakil, will not come under Cl. (a) or (b) of O. 23 R. 1 (2) being neither a formal defect nor falling under "other sufficient grounds". 1956 Bombay 632 - It has been held in this case that failure to make a proper claim and failure to implead parties in respect of the claim cannot be properly regarded as a formal defect which is fatal to the suit within the meaning of O. 23 Rule 1. R. L. W. 1952 page 425 - The High Court of Rajasthan while examining the scope of O. 23 Rule with liberty to file a has observed as under - "the prayer to withdraw the suit fresh suit can be given if the case could be brought within the four corners of O. 2$ Rule 1 (2) and such permission can be given if the suit must fail by reason of some formal defect or there were some other grounds to allow the plaintiff to institute a fresh suit or part of a claim. " A. I. R. 1967 Punjab 257 - The following rule has been laid down - "the object of O. 23 Rules 1 & 2 G. P. G. is to permit the plaintiff to have a fair trial on merits in cases where the defects are in one of form and can be rectified only by a de novo trial and not in cases where the plaintiff wants to avoid his previous negligent conduct. '" A. I. R. (37) 1950 Allahabad Page 489 - In this case also expression 'formal defect' has been defined. The expression formal defect connotes defects of various kinds not affecting the merits of the case. A defect which goes to the root of the plaintiff's claim is not a formal defect. Defects such as omission to obtain permission if necessary, of the necessary authority before bringing the suit, misjoinder of parties or causes of action, or erroneous valuation of the subject-matter of the suit or the institution of the suit in a court which has no jurisdiction to entertain the suit are defects of a formal nature. " We find from a careful study of the rule laid down in these rulings that they all support the argument of the learned counsel for the appellants. We may now examine whether the grounds to withdraw the suit are covered by the expressions "formal defects" or "other sufficient grounds. " The clear admission of the plaintiff himself that in the original suit the defendants have been shown as co-tenants while in the fresh suit they will stand as sub-tenants, shows that this ground does not come under formal defect or other sufficient grounds as it is not a defect in the procedure. On the other hand, it will affect the root as also merits of the suit filed by the plaintiff. This prayer of the plaintiff, therefore, is not covered by O 23 Rule 1 of the C. P. C. Both the courts below have, therefore, committed an illegality in allowing the plaintiff to withdraw the original suit and file a fresh one. The grounds taken by the plaintiff are not covered by the expression 'formal defect" and 'other sufficient grounds. ' We, therefore, accept this appeal, set aside the orders passed by the learned R. A. A. Jaipur and the Assistant Collector, Jaipur. . ;