None appears for the Opposite Party. Heard learned counsel Mr. T. C. Khatri on behalf of the defendant-petitioner. The defendant-petitioner impugnes the order dated 7-12-1985 passed by the Assistant Ditrict Judge No. 1 Gauhati in Title Suit No. 57 of 1984 dismissing the suit on withdrawal with liberty to the plaintiff to institute a fresh suit on the same cause of action. 2. Learned counsel Mr. Khatri submits that the suit of the Opposite Party-Plaintiff was defective abinitio for non-registration of the plaintiff-firm and so, the defect alleged in the withdrawal application was not a formal defect for granting liberty to institute fresh suit. 3. The Opposite Party-Plaintiff instituted the Title Suit No. 57 of 1984 claiming it was a partnership firm registered under the Indian Partnership Act, 1932. The petitioner-defendant contested the suit by filing written statement and counter claim. At the hearing stage, the plaintiff filed application under the provision of Order 23 Rule 1 (3) (a) for withdrawal of the suit for formal defect on the ground that the plaintiff firm not registered under the Indian Partnership Act as stated in plaint. The Court passed the impugned order. 4. The plaintiff's firm was not registered under section of the Partnership Act, so, it sufferred from legal disability enforce right arising from the contract stated in the plaint to institute a suit against the petitioner-defendant by operation section 69(2) of the Partnership Act. The defect in the suit had effected the merit of the suit. Non-registration of a partnership firm is not a formal defect, but it is a defect affecting the merit of the suit at the root and so the liberty to institution a fresh suit on the same cause of action under Order 23 Rule 1(3) (a), cannot be granted. (Relied A. I. R. 1940, Bom. Full Bench 121, Ramrao Bhagwantrao Inamdar vs. Babu Appanna Samagei A.I. R. 1977 SC 336, Loonkaran Sethia vs. Ivan E. John A.I.R. 1986 On Orissa I and Khatuna and another vs. Ramsewak Kashinath.). 5. In view of the facts in the case and relying the above decisions, the portion of the impugned order granting liberty to institute a fresh suit was without jurisdiction as the defect shown in the suit was not a formal defect. 6. Accordingly, this Revision is allowed. 5. In view of the facts in the case and relying the above decisions, the portion of the impugned order granting liberty to institute a fresh suit was without jurisdiction as the defect shown in the suit was not a formal defect. 6. Accordingly, this Revision is allowed. That Portion of the impugned order granting liberty to institute a fresh suit on the same cause of action is hereby set aside.