G. M. LODHA, J. - (1.) THIS is a revision petition by the defendant against whom the suit has been dismissed, but as withdraw with permission to file a fresh suit.
(2.) THE two grounds on which the withdrawal was claimed related to nonjoinder of the party and also the absence of relief regarding specific performance of contract. Mr. R C. Kasliwal, the learned counsel for the petitioners has submitted that firstly, both these defects are not sufficient to permit the withdrawal of suit with permission to file a fresh one. Secondly, in any case, the court is required to record the satisfaction which has not been done, in the present case. Mr. Kasliwal, then submitted that these defects can be considered in revision in view of the decision in Bamroa Bhagwantrao Inamdar vs. Babu Appanna Samage (1 ). He also submitted that the law is well settled and the non-joinder of a party is not a formal defect. Various decisions have been cited in support of the above contention. In this particular case, my attention. was invited by Mr. Kasliwal, the decisions in the Asian Assurance Co. Ltd. vs. Madholal Sindhu (2), and Trinath Parida vs. Sobha Jhalaini (3 ). He also invited my attention to the case of Dalipsingh vs. Rajinder Singh (4) in which it has been held that the state-ment of the plaintiff is not sufficient as the court must be satisfied that there is a formal defects in the form of the suit. My attention was also invited to Pairsa vs. Ganesh Dass (5) in which it has been held that if the defects are on account of the plaintiff then permission should not be granted.
(3.) RELYING on Tarachand Bapuchand vs. Galbihaji Ahmed Bhagwan (6 ). Mr. Jain learned counsel for the respondent has contested the revision petition. He placed reliance on the decision in Shri M. L. Sethi vs. Shri B. P. Kapur (7), in which the scope of Section 11:5 has been discussed. I have carefully considered the submission of learned counsel for both the parties and have also given a thoughtful consideration to the principles laid down in the above decisions. Order XXIII Rule 1, Sub-clause (3) reads as under ; " (1) Withdrawal of suit or abandonment of part of claim :- (2) Where the court is satisfied; (a) that a suit must fail by reason of some formal defects, 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, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. " ;