CRP 19/2024 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI CRP No. 19/2024 Alom Khan, S/o Lt. Samsur Rahman Khan, Resident of Vill-Bijni Gaon (Puran Bijni), PO & PS-Bijni, Dist.-Chirang, BTR, Assam. ……Petitioner/Plaintiff. -Versus- 1. Johura Khatun, W/o Habibar Rahman, Resident of Vill-No.2 Kawadi (Sonaikola), PO-Patiladoha, PS-Manikpur, Dist.-Bongaigaon, Assam, Pin-783391. 2. Sher Bahadur Khan, S/o Lt. Samsur Rahman Khan, Resident of Vill-No.2 Kawadi (Sonaikola), PO-Patiladoha, PS-Manikpur, Dist.-Bongaigaon, Assam, Pin-783391. ……Respondents/Defendants. BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN For the Petitioner : Mr. B.J. Mukherjee. ……Advocate. For the Respondents : Mr. A.K. Hussain. ……Advocate. GAHC010022852024 CRP 19/2024 Date of Hearing : 25.07.2025 Date of Judgment : 24.09.2025 O R D E R Heard Mr. B.J. Mukherjee, learned counsel for the petitioner and also heard Mr. A.K. Hussain, learned counsel for the respondents. 2. In this petition, under Article 227 of the Constitution of India, read with Section 115 of the Code of Civil Procedure, 1908, the petitioner has challenged the order, dated 08.01.2024, passed by the learned Civil Judge (Jr. Division), Bongaigaon (Trial Court, for short), in Title Suit No.18/2022, whereby the Petition No.2121/2023, dated 19.08.2023, filed under Order 23 Rule 1(3) of the Code of Civil Procedure, for withdrawal of the suit, with liberty to file a fresh suit, was rejected. 3. Mr. Mukherjee, learned counsel for the petitioner submits that the petitioner as plaintiff had instituted one title suit, being Title Suit No. 18/2022, for declaration of right, title, interest, khas possession and permanent injunction and when the suit was fixed for document/SBPH on 11.01.2023, the petitioner has filed Petition No.128/2023 under Order 6 Rule 17 read with Section 151 of the CPC with a prayer to amend the plaint, upon which Misc.(J) Case No.4/2023, was registered and thereafter, hearing both the side, the learned Trial Court has dismissed the same. Thereafter, the petitioner has filed another petition, being Petition No.2121/2023, on 19.08.2023, under Order 23 Rule 1(3), read with Section 151 of the Code of Civil Procedure, for withdrawal of the suit CRP 19/2024 with liberty to institute a fresh one. But, the learned Trial Court, vide impugned order, dated 08.01.2024, had dismissed the same and being aggrieved, the petitioner approached this Court by filing the present petition. 3.1. Mr. Mukherjee further submits that the title suit was instituted without describing the flow of title of the petitioner over the suit land and on such count, the suit is bound to fail and this constitute the ‘sufficient ground’ as described under Order 23 Rule 1(3) CPC, and as such, the same could have been allowed by the learned Trial Court. But, the learned Trial Court has failed to consider the same and under such circumstances, Mr. Mukherjee has contended to allow this petition. 4. On the other hand, Mr. Hussain, learned counsel for the respondents has supported the impugned order, dated 08.01.2024, passed by the learned Trial Court. Mr. Hussain submits that having failed to amend the plaint, the petitioner has preferred the Petition No.2121/2023 for withdrawal of the suit and the defect shown by the petitioner is not a formal defect and the same also does not fall in the category of sufficient ground and as such, this petition is liable to be dismissed. 5. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 08.01.2024 and Order 23 Rule 1(3) of the CPC. 6. A perusal of the Order 23 Rule 1(3) CPC indicates that on an application being filed by the plaintiff to allow him to withdraw his defective suit, necessary step should be taken to cure that defect and CRP 19/2024 then institute a fresh suit on the same cause of action and claiming same relief. The Order read as under:- 1. Withdrawal of suit or abandonment of part of claim:- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,-- (a) that a suit must fail by reason of some formal defect, 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. xxxxxxx CRP 19/2024 7. In the case of V. Rajendran & Anr. v. Annasamy Pandian (Dead) Through Legal Representatives Karthyayani Natchiar, reported in (2017) 5 SCC 63, Hon’ble Supreme Court has held that ‘formal defect’ is a defect of form prescribed by the rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, affixing insufficient court fee, ambiguity regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action, etc. 8. It is to be noted here that a Coordinate Bench of this Court in the case of Mukut Phukan v. United Bank of India & Ors., reported in (2019) 4 GLR 254, has held that the Court is given discretion under Order 23 Rule 1(3) of the CPC, but before the application of the discretion by the Court, it must be satisfied that a suit must fail by reasons of some formal defects or there are sufficient grounds for allowing the plaintiff to withdraw and institute afresh a suit for the subject matter of a suit or part of a claim and only on fulfilling the said condition, permission to withdraw the suit must be granted with liberty to institute a fresh one. 9. In the case of K.S. Bhoopathy & Ors. v. Kokila & Ors., reported in (2000) 5 SCC 458, Hon’ble Supreme Court has held that when an application is filed under Order 23 Rule 1(3) of the CPC, the Court must be satisfied about the formal defect or sufficient grounds. ‘Formal defect’ is a defect of form prescribed by the rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action, etc. ‘Formal defect’ must be given a liberal meaning which connotes various CRP 19/2024 kinds of defects not affecting the merits of the plea raised by either of the parties. It is also held that Clause (b) of sub-rule 3 contains the mandate to the court that it must be satisfied about sufficiency for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the code on taking into consideration all relevant aspect of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. 10. In the instant case, having gone through the petition and the documents placed on record and also considering the submission of the learned counsel for both the parties, this Court finds that the defect being shown by the petitioner will fall in the category of ‘sufficient ground’ as described under Order 23 Rule 1(3)(b) CPC. It is noted here that the phrase ‘sufficient ground’, cannot be given a restrictive meaning. It is also to be noted here that sufficient grounds are distinct and independent from formal defect. The failure of the plaintiff/petitioner to describe in his plaint about flow of his title, would inevitably results in failure of the suit and as such, to the considered opinion this Court, it constitute the ‘sufficient ground’, as described under Order 23 Rule 1(3)(b) CPC. 11. And since the petition filed by the petitioner under Order 6 Rule 17 CPC was dismissed by the learned Trial Court, vide order dated 17.07.2023, the petitioner was left with no other option but to file a petition for withdrawal of the suit under Order 23 Rule 1(3) read with Section 151 of the CPC, and unless the petitioner described in his plaint as to how his right over the suit land flows, the suit is bound to fail. CRP 19/2024 12. Thus, having examined the facts and circumstances on the record, in the light of the aforementioned decisions, this Court is satisfied to hold that the petitioner has succeeded in showing ‘sufficient ground’ under Clause 1(b) of Rule 3 of the Order 23 CPC. , as he could not plead in his plaint as to how his title over the suit property flows to him and if he failed to disclose the same in his plaint, the suit filed by him would surely fail. 13. Under the above facts and circumstances, this Court is of the considered opinion that the impugned order dated 08.01.2024, fails to withstand the legal scrutiny and accordingly, the same stands set aside and quashed. The petition filed by the petitioner dated 19.08.2023 stands allowed. The petitioner is allowed to withdraw the suit granting liberty to file a fresh one. 14. The parties have to bear their own costs. Comparing Assistant Sd/- Robin Phukan JUDGE