Page No.# 1/5 GAHC010094952026 2026:GAU-AS:7903 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/209/2026 SHAMIM AHMED D/O LATE SHAFIUDDIN, RESIDENT OF VILL- MANKACHAR MIAHPARA, P.O AND P.S- MANKACHAR, DIST. - SOUTH SALMARA MANKACHAR, ASSAM, PIN-783131 VERSUS RAKIB AL HASSAN S/O ABDUR ROHIM, RESIDENT OF VILL - KAWAHAGI, P.O.- TUMNI, P.S. - SOUTH SALMARA, DIST. - SOUTH SALMARA MANKACHAR, ASSAM, PIN - 783131. Advocate for the Petitioner : MR. K M HASSAN, Advocate for the Respondent : , Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 05.06.2026 Heard Mr. K.M. Hassan, learned counsel for the petitioner. 2. By filing this application under Article 227 of the Constitution of India, the petitioner, who is the plaintiff in M.S. No.09/2022, has assailed the order dated 26.03.2026, passed by the learned Civil Judge (Senior Division), South Salmara Mankachar, in Misc.(J) Case No.16/26, which was an application filed under Order XXIII, Rule 1 (3) of the CPC for withdrawal of the suit with liberty to file afresh. 3. The learned counsel for the petitioner has submitted that the proceeding of the suit was filed by another set of counsel and in course of the said suit, the petitioner had filed the evidence-on-affidavit drafted by the earlier engaged counsel. For some reasons, the petitioner took a no objection certificate from the earlier set of counsel and engaged a new set of counsel to take further steps. It is submitted that on scrutiny of the plaint as well as on scrutiny of the evidence-on-affidavit of the PWs, the new set of counsel found some discrepancies in the explanation of dates and events as well as facts. Accordingly, the new set of counsel was of the view that the entire facts be disclosed before the Court. It is submitted that the new of set counsel also found some error in calculations and other technical defects in the plaint which could not be application by way of filingan amendment under Order VI Rule 17 of the CPC. Therefore, the petitioner was advised to withdraw the suit and to approach the Court again as it would be difficult to correct all the inadvertent mistakes which are technical in nature and portray incorrect facts Page No.# 3/5 before the Court. 4. The respondent had contested the application by filing objection. 5. The learned Civil Judge (Senior Division), South Salmara-Mankachar, by the impugned order dated 26.03.2026, rejected the said application. 6. The learned counsel for the petitioner has submitted that as this is a money suit and any premature disclosure of the nature of defects which have occurred in the plaint would cause prejudice to the petitioner. Accordingly, it is submitted that the impugned order dated 26.03.2026 was perverse without considering the facts and circumstances mentioned in the said petition. 7. It is submitted that in the petition for withdrawal, it was categorically mentioned that there were some unexplained list of events which were required to be morefully explained. It was submitted that the errors in calculation, if allowed to remain, would be fatal to the petitioner. It is further submitted that due to the fault of the learned counsel the petitioner should not suffer. 8. Having heard the learned counsel for the petitioner, perused the materials available on record. 9. In the plaint, the petitioner had disclosed about the outstanding dues of Rs.5,80,000/- (Rupees Five lakhs eighty thousand only) receivable from the respondent. However, on perusal of the application under Order XXIII Rule 1 (3) of the CPC, it is not seen as to the nature of calculation mistake and the so-called technical defects have also not been specified. Thus, the reasons for the petitioner to withdraw the suit vague and is not Page No.# 4/5 properly explained. In that regard the finding of the learned trial Court cannot be said be to either bad in law or perverse. 10. On a perusal of the provision of Order XXIII, Rule 1(3) of the CPC, the Court is required to be satisfied that the suit must fail by reason of some formal defect and in addition to as alternative to the above, the Court is required to record its satisfaction that there are sufficient grounds for allowing the respondent/ plaintiff to withdraw the suit only on the existence of sufficient grounds for the plaintiff to institute a fresh suit. 11. In the said application under Order XXIII, Rule 1(3) of the CPC, which was registered as Misc.(J) Case No.16/26, it is vaguely stated that there is a calculation error of the dues and similarly, it was vaguely stated that there were technical defects in the plaint. The nature of the error, mistake in calculation and technical defects have not been stated or explained. 12. Accordingly, it is seen that the learned trial Court took cognizance of the fact that the power under Order XXIII, Rule 1(3) of the CPC is required to be exercised with caution and circumspection and also took note of the fact that the petitioner had not stated anything about the nature of formal defects in the suit for which the suit was likely to fail. Moreover, the petitioner has not spelt out the nature of formal or technical defects contained in the plaint. Accordingly, the impugned order dated 26.03.2026, passed by the learned Civil Judge (Senior Division), South Salmara-Mankachar in connection with Misc.(J) Case No.16/26 in M.S. Case No.09/2022 is not found to be vitiated by any defect or perversity. 13. Accordingly, this petition fails and the same is dismissed. Page No.# 5/5 14. The Registry shall transmit a downloaded copy of this order to the Court of learned Civil Judge (Senior Division), South Salmara-Mankachar so that this order may be made a part of the records of M.S. Case No.09/2022. JUDGE Comparing Assistant