Short Note : According to the petitioner-plaintiff, non-applicant-defendants 1 to 4 minor sons and daughter of non-applicant-defendant No.5 sold the suit land to him by a registered sale-deed executed on 17-5-1967. The suit was for possession of that land as also for future damages. Some others were also impleaded as defendants. The defendants had filed written statements. It appears that some preliminary issues regarding the valuation of the suit had also been framed by the Court on which the parties were to lead evidence. 2. On behalf of the plaintiff an application under Order 23, rule 1 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was filed. In this application it was stated that subsequent purchasers were impleaded as defendants and it appears that it is necessary to add some other persons also as parties. It was further stated that the defendants have raised objections about the valuation of the suit and the jurisdiction of the Court. He therefore, wanted to withdraw from the suit with liberty to institute fresh suit. This prayer was opposed on behalf of the defendants. 3. The trial Judge observed that if the valuation of the suit is found to be beyond the jurisdiction of the Court the plaint would be returned for being presented to the proper Court. He further observed that since in the present suit the plaintiff would be required to pay Court-fees according to the law then in force on the market value of the land as the suit land is not separately assessed to land-revenue, hence he after withdrawing the suit would file the suit with Court-fees calculated on the land-revenue according to the amended law. He, therefore, rejected the application. Held : From the impugned order it is clear that the valuation of the suit has been disputed by the defendants and for that reason issue has also been framed on which the parties have to lead evidence. Further it is not clear as to on what material the trial Judge felt that the suit-land has not been separately assessed to land revenue. 4. Further it is not clear as to on what material the trial Judge felt that the suit-land has not been separately assessed to land revenue. 4. The trial Judge instead of considering whether the reasons for withdrawing from the suit with liberty to file fresh suit were covered within the meaning of "formal defect" as used in (a) or were "sufficient grounds" under clause (b) of Order 23, rule 1(2) of the Code, gave out the consequences if such, permission was not given. If the test for granting such a permission were to be such as has been applied by the trial Judge then possibly such permission can never be granted. 5. In Thakur Prasad and another v. Rasool Bux and another, AIR 1950 All. 489 it has been observed that “the expression 'formal defect' connotes defects of various kinds not affecting the merits of the case. A defect which goes to the root of the plaintiff's claim is not a formal defect. Defect, such as omission to obtain permission if necessary of the necessary authority before bringing the suit, misjoinder of parties or causes of action or erroneous valuation of the subject-matter of the suit or the institution of the suit in a Court which has no jurisdiction to entertain the suit, are defects of a formal nature.” 6. In my opinion a formal defect, is a defect of form which is prescribed by rules of procedure such as misjoinder of parties of causes of action, nonpayment of proper Court-fee, failure to disclose cause of action and so forth. All these details must be mentioned in the plaint under the rules of procedure but there may also be other sufficient grounds which would render the suit liable to be dismissed by reason of a defect or defects which may not necessarily be of a formal character such as those enumerated above. 7. This was precisely the problem in the instant case. There was an objection about the valuation of the suit as also about the Court-fees. In view of these defects the merits of the claim would not be investigated and it could be set right by filing a fresh suit. The suit is yet at a preliminary stage and no evidence appears to have been recorded. There is nothing to suggest or make out any malafides against the plaintiff. In view of these defects the merits of the claim would not be investigated and it could be set right by filing a fresh suit. The suit is yet at a preliminary stage and no evidence appears to have been recorded. There is nothing to suggest or make out any malafides against the plaintiff. The defects that have been given out are clearly formal. That being so, the plaintiff was entitled to withdraw from the suit with liberty to file fresh suit. Revision allowed.