Page No.# 1/6 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 Page No.# 2/6 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 Page No.# 3/6 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 and Another v. Annasamy Pandian (Dead) through Legal Representatives Karthyayani Natchiar] and emphasized in para 12, which reads as under:- Page No.# 4/6 “12. In the present case, the appellants have filed the suit describing the suit property as Survey No. 192/9 but the respondents are said to have transferred the patta for the suit property settling as Survey No. 192/14. The defect in the survey number of the suit property goes to the very core of the subject-matter of the suit and the entire proceedings would be fruitless if the decree-holder is not able to get the decree executed successfully and thus, the said defect will constitute to be a “formal defect’ within the meaning of Order 23 Rule 1(3)(a) CPC. That apart, the respondents are said to have executed an Inam settlement deed on 21.09.2012, in favour of their son Aranmanai Pandian, mentioning the suit property as Survey No. 192/14. We are convinced that the case of the appellants would fall under clause (a) of Rule 1(3) CPC.” 6. Mr. Sahewalla further submitted that if the petitioner is not allowed to withdraw the case with liberty to file afresh, would cause grave injustice and prejudice to the present petitioner. At the same time, no injustice or prejudice will be caused to the other side as they will get the ample opportunity of contesting the case, if a fresh suit is filed. 7. Mr. Mazumder the learned Senior Advocate raised objection and submitted that the grounds mentioned in the petition for withdrawal is not only on formal defects of the case but it will affect the merits of the case and hence the learned Trial Court below had rightly passed the order rejecting the prayer for withdrawal of the case with a liberty to file afresh. Mr. Mazumder further submitted that in the said petition the petitioner had brought as many as four formal defects and out of which the defects which has been mentioned in para no. 4(i) and para no. 4(ii) are not the formal defects but, it will affect the merit of the case and also will change the subject matter of the case. He further submitted that in view of proviso of Section 34 of the Specific Relief Act and in view of Order II Rule 2 CPC the defects which were brought in para no. 4(i) and para no. 4(ii) can not be considered as a formal defect to allow the petition for withdrawal with a liberty to file afresh. 8. Mr. Mazumder further submitted that before passing order of withdrawal Page No.# 5/6 with a liberty to file afresh the Court has to be cautious and to see as to whether the defect brought in the petition are formal defects or whether there is any sufficient ground to consider such nature of application. In that context he also relied on the same judgment as relied by the petitioner and emphasized on para 10 of the said judgment which reads as under:- “10. In K.S. Bhoopathy v. Kokila, it has been held that it is the duty of the Court to be satisfied about the existence of “formal defect’ or “sufficient grounds” before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the “formal defect” or ‘sufficient grounds”, such right cannot be considered to be so absolute as to permit or encourage abuse of process of court. The fact that the plaintiff is entitle to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order 23 Rule 1(3) 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 raised by either of the parties.” 9. However it is submitted by Mr. Mazumder that the defect in identification of the suit property as well as the mis-joinder/non-joinder of the parties may be considered as the formal defect. But, the petition cannot be allowed as a whole for withdrawal of the suit on the basis of the defects which are brought in the petition for withdrawal. 10. Hearing the submission made by learned counsel for both sides, I also perused the case record, annexures filed along with the petition as well as the order of the learned trial Court below. It is seen that the learned Trial Court below has not discussed much about the defects, which are brought in the petition elaborately. However, it is considered that the defects which are brought in the petition cannot be considered as the formal defects to allow the prayer Page No.# 6/6 for withdrawal. But, considering the view of the Hon’ble Apex Court which defines the formal defect it is seen that the non-identification of suit property as well as the mis-joinder/non-joinder of necessary parties may be considered as a formal defect within the meaning of Order 23 Rule 1(a) CPC to consider the prayer for withdrawal with a liberty to file a petition. 11. In view of this the present petition is allowed and the order passed by the learned Munsiff No. 1 in Misc.(J) Case No. 71/2020 arising out of T.S. No. 17/2017 dated 03.12.2021 is hereby set aside and quashed and the petitioner is allowed to withdraw the suit with a liberty to file afresh on the same subject matter considering that the non-joinder/mis-joinder of necessary parties as well as non-identification of the suit properties may be considered as a formal defect. 12. With the above observations, the present application stands disposed of. JUDGE Comparing Assistant