Page No.# 1/8 GAHC010099532025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/179/2025 JAMIL AKHTER HUSSAIN AND 6 ORS. S/O- LATE AMIRCHAND ALI, R/O- DHULIAPAR, P.S AND DIST- SIVASAGAR, ASSAM 2: BODRUL HUSSAIN S/O- LATE AMIRCHAND ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 3: ELIYASUDDIN AHMED S/O- LATE AMIRCHAND ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 4: GALBUR HUSSAIN @ GULIB HUSSAIN S/O- LATE AMIRCHAND ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 5: MUKHTER HUSSAIN S/O- LATE AMIRCHAND ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 6: RASID ULLAH BORA S/O- LATE AMIRCHAND ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM Page No.# 2/8 7: SALMA BEGUM D/O- LATE AMIRCHAND ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSA VERSUS RENU BEGUM AND 7 ORS. D/O- LATE SUNU ALI, R/O- DHULIAPAR, P.S AND DIST- SIVASAGAR, ASSAM 2:ABUL ALI S/O- LATE SUNU ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 3:BABUL ALI S/O- LATE SUNU ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 4:RUBUL ALI S/O- LATE SUNU ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 5:NEBUL ALI S/O- LATE SUNU ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 6:DADUL ALI S/O- LATE SUNU ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM 7:RANEMA BEGUM D/O- LATE SUNU ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSAM Page No.# 3/8 8:NASIMUDDIN AHMED S/O- LATE SUNU ALI R/O- DHULIAPAR P.S AND DIST- SIVASAGAR ASSA Advocate for the Petitioner : MR. A AHMED, MISS. P M AHMED,MR A AHMED,U U KHAN,MR. M A CHOUDHURY Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 19.05.2025 Heard Mr. A. Ahmed, learned counsel for the petitioners. 2. In this petition, under Section 115 of the C.P.C., read with Article 227 of the Constitution of India, the petitioners have put to challenge the correctness or otherwise of the order, dated 10.02.2025, passed by the learned Civil Judge (Junior Division) No. 2, Sivasagar (trial court hereinafter), in Misc. (J) Case No. 64/2025. 3. It is to be noted here that vide impugned order, dated 10.02.2025, the learned trial court had allowed the prayer of the respondents/plaintiffs to withdraw the suit with liberty to file a fresh one. 4. Mr. Ahmed, learned counsel for the petitioners, submits that the respondents herein, as plaintiffs, had instituted a title suit, being Title Suit No. 14/2022, before the learned trial court, for decree for declaration of their rights over the suit land; permanent injunctions restraining the defendants/petitioners from filling earth and proposed construction; and other consequential relief. Thereafter, on receipt of the summon and copy of the plaint, the petitioners/defendants entered appearance and filed their written statements. Page No.# 4/8 4.1. Mr. Ahmed submits, during the pendency of the title suit, the plaintiffs/respondents had filed an application for injunction and the petitioners/defendants had filed their objection for the same. Then after hearing learned counsel for both the parties, the learned trial court had dismissed the said injunction application. Thereafter, the respondents/plaintiffs had filed another application, under Order 39 Rules 1 & 2 and read with Section 151 of C.P.C. for grant of permanent injunction restraining the petitioners/defendants to stop alleged construction. 4.2. Thereafter, the plaintiffs/respondents had engaged a new counsel and on 25.04.2024, they filed one petition, being Petition No. 65/2024, under Order 23 Rule 1 of the C.P.C. praying for withdrawal of the suit with liberty to file a fresh one. The said petition was rejected by the learned trial court, vide order dated 16.07.2024, after hearing both sides. 4.3. Mr. Ahmed also submits that thereafter, the respondents/plaintiffs again filed a petition, being petition No. 487/2024, on 13.08.2024, under Section 151 of the C.P.C., before the learned trial court to recall the order dated 16.07.2024 and also praying for allowing them to withdraw the suit with liberty to file afresh one. In the said petition, the petitioners/defendants had filed their written objection on 09.01.2025. Then on 10.02.2025, the learned counsel for the petitioner/defendants had filed one adjournment petition, being Petition No. 144/2025, for adjourning the matter on the ground of personnel difficulties. But, the learned trial court, after hearing the matter observed that the plaintiffs/respondents have shown sufficient grounds for allowing them to withdraw the suit and to institute a fresh suit. Accordingly, vide order dated 10.02.2025, the learned trial court had allowed the plaintiffs/respondents to withdraw the Title Suit No. 14/2022 with liberty to file a fresh one. Page No.# 5/8 4.4. Mr. Ahmed further submits that the petitioners are aggrieved and dissatisfied with the said order, dated 10.02.2025, as the adjournment petition filed by the petitioners/defendants was rejected and the petition filed by the plaintiffs/respondents, under Order 23 Rule 1 of the C.P.C. for allowing them to withdraw the suit with a liberty to file a fresh one, was also rejected by the learned trial court, but, in a petition to recall the earlier order, the learned trial court had allowed the respondents/plaintiffs to withdraw the suit by holding that sufficient grounds have been shown for allowing them to withdraw the same, including lunacy of the plaintiffs’ father and uncles and accordingly, the same was allowed. Mr. Mr. Ahmed further submits that if the respondents/plaintiffs are allowed to file a fresh suit, then they will bring on record new facts, which were not in the earlier suit and thereby the present petitioners will be prejudiced. 4.5. Mr. Ahmed further submits that as held by a coordinate Bench of this court, in the case of Puspendra Nath Borah vs. Lalit Chandra Borah, reported in MANU/GH/0561/2014, only in case of formal defects the parties may be allowed to withdraw the suit and if there is no formal defects, then it would not apparently covered by sufficient ground as mentioned in Order 23 Rule 1(3) (b) of the C.P.C., and since the defects shown by the respondents/plaintiffs in their petition to withdraw the suit does not disclose any formal defects, the same is not covered under ‘sufficient ground’ as held in the aforementioned case. Therefore, Mr. Ahmed has contended to allow the petition. 4.6. Later on, Mr. Ahmed also submits that in the meantime, the plaintiffs/respondents has instituted the new suit, being Title Suit No. 18/2025, wherein the present petitioners have already received the summon. 4.7. To a pointed query of this court, as to whether the respondents/plaintiffs Page No.# 6/8 had pleaded lunacy of the plaintiffs’ father and uncles in the plaint or not, Mr. Ahmed submits that such pleadings are not there. 5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the order dated 10.02.2025 and also perused the decision referred by Mr. Ahmed, learned counsel for the petitioners. 6. It is not in dispute that vide order dated 10.02.2025, the learned trial court had allowed the respondents/plaintiffs to withdraw the Title Suit No. 14/2024. It appears that while allowing the petition, the learned trial court had discussed one case law of Hon’ble Supreme Court in Murali Sundaram vs. Jothibai Kannan and Others, in Civil Appeal Nos. 1167-1170/2023, wherein it has been observed at paragraph No. 5.1. as under:- “5.1. After considering catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed upon as under: (i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on the points where there may conceivably by two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. Page No.# 7/8 (iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate. (v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.” 6.1. Thereafter, the learned trial court, considering the facts and circumstances of the case and also considering the submission of learned counsel for the petitioner opined that careless framing of plaint without disclosing proper valuation, cause of action, other material facts such as lunacy of plaintiffs’ father and uncles, comes within the ambit of "sufficient grounds" for allowing the plaintiff to institute a fresh suit regarding the subject matter of the suit or part of a claim and thereafter, allowed the petition. 7. Thus, having examined the impugned order, so passed by the learned trial court, in the light of the given facts and circumstances on the record and also in the light of the decision of Hon’ble Supreme Court in the case of Murali Sundaram (Supra), this court is of the view that the defects so discussed by the learned trial court fall in the ambit of formal defects. 8. Further, a cursory perusal of the plaint reveals that it was drafted without disclosing the cause of action and without proper valuation and in the plaint, though the plaintiffs/respondents prayed for permanent injunctions and other consequential relief, yet, no prayer for confirmation of possession has been made and since consequential relief of confirmation of possession has not been pleaded, the suit itself is not maintainable in view of Section 34 of the Specific Relief Act and as such, the defects so pointed out come in the ambit of ‘formal defects’ and also there exist ‘sufficient ground’ for allowing the Page No.# 8/8 plaintiffs/respondents herein to withdraw the suit. 9. In view of above, this court finds no merit in this petition and accordingly, the same stands dismissed, leaving the parties to bear their own costs. JUDGE Comparing Assistant