ORDER : K.A. Puj, J. The petitioners-ori. defendants have filed this Civil Revision Application under Section 115 of the Civil Procedure Code praying for quashing and setting aside judgment and order 20.12.2002 passed by the learned Small Causes Judge at Ahmedabad below Ex.85 in H.R.P. Suit No. 412 of 1996 and thereupon allowing the said application of the respondent only for the limited purpose of withdrawing the said Civil Suit from the file of Small Causes Court, Ahmedabad with a liberty to file another Suit on the same cause of action under Order 23, Rule 1(3)(a) of the Civil Procedure Code. 2. The said Civil Revision Application was admitted and rule was issued on 6.2.2004. On service of notice of rule Mr. Rajkumar N. Vora, learned advocate appears and filed his appearance on behalf of the respondent. 3. The brief facts giving rise to the present Civil Revision Application are that the present respondent had filed Civil Suit being H.R.P. Suit No.412 of 1996 in the Court of Small Causes Judge, Ahmedabad against the petitioners as well as two other persons in the name and style of "Zaveri & Company Jewellers" and "Zaveri & Company Rajkotwala Jewellers", inter alia, seeking a decree for possession of the suit premises under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 on the premises that the respondent is the exclusive owner of the suit premises, which has been leased out to the petitioners, and as the petitioners have committed various defaults under the provisions of the said Act, the respondent has become entitled to recover the possession thereof from the petitioners. 4. The present petitioners raised contention in the said Suit that the respondent is not exclusive owner of the suit premises, inasmuch as, there are other co-owners of the suit premises, along with the respondent, and as a result thereof, the said suit filed alone by the respondent as an exclusive owner of the suit premises would not be maintainable. Thus, in substance, in the said written statement, a specific plea of non-joinder of necessary party came to be raised by the petitioners. Thus, in substance, in the said written statement, a specific plea of non-joinder of necessary party came to be raised by the petitioners. Upon recording of the evidence and, thereafter, upon conclusion of oral submissions, the respondent sought permission of the Court under Order 23, Rule 1(3)(a) of the Civil Procedure Code, inter alia, seeking permission of withdrawal of the said suit, with a liberty to file a fresh suit on the same cause of action. On behalf of the present petitioners, a specific endorsement was made on an application Ex.85 raising an objection with regard to the permission sought for by the respondent. The learned trial Judge has passed an order on 20.12.2002 below an application Ex.85 granting permission to the respondent to withdraw the said suit with a liberty to file a fresh suit on the same cause of action. 5. It is this order and judgment which is under challenge in the present petition. 6. Mr.Viral Dave, learned advocate appearing for Mr. D. C. Dave, for the petitioners, submitted that while passing the impugned judgment and order the learned Judge has exercised the jurisdiction vested in him by law with material illegality and irregularity and as a result thereof, if the impugned judgment and order are permitted to hold the field, grave and substantial injustice and loss of irreparable nature, resulting in total miscarriage of justice would occasions to the petitioners and as a result thereof, it would be in the interest of justice and fitness of things to quash and set aside the impugned judgment and order. He has further submitted that the learned Judge has absolutely erred in coming to the conclusion that non-joinder of necessary party in the said suit as co-plaintiffs or otherwise by the plaintiffs as co- owners of the suit premises would constitute a formal defect of a technical nature and as a result thereof, it would be within the jurisdiction of the trial Court to grant permission for withdrawal of the said suit, with a liberty to file afresh on the same cause of action under Order 23, Rule 1(3)(a) of the Civil Procedure Code. 7. In support of this submission Mr. 7. In support of this submission Mr. Dave relied on the decision of this Court in the case of Bai Maru D/o Muman Dosan Khanji v. Saiyad Latifalli Akbarali, reported in 1962 (3) GLR 800, wherein it is held that when the suit is likely to fail on account of non-joinder of necessary parties, the same would not be the case of the suit suffering from the vice of a formal defect of a technical nature, warranting invocation of the provisions embodied in Order 23, Rule 1(3)(a) of the Civil Procedure Code and, therefore, in respect of such suit, no permission can be granted for withdrawal of the suit, with a liberty to file another suit. He has, therefore, submitted that in view of the above decision of this Court the learned trial Judge should not have entertained the application of the respondent at Ex.85 for withdrawing the suit with a permission to file a fresh suit on the same cause of action. He has further submitted that, even otherwise, the said application Ex.85 was moved by the respondent at very belated stage after conclusion of the oral arguments and as a result thereof the same was not required to be considered favourable for the purpose of qualified withdrawal, as requested by the respondent, by invoking the application of the doctrine of abuse of process of law. He has, therefore, submitted that the impugned order deserves to be quashed and set aside and the present Civil Revision Application deserves to be allowed. 8. Despite the fact that three calls were made and yet Mr.Rajkumar Vora, learned advocate appearing for the respondent is not present and hence the Court has proceeded to decide the matter on merits. 9. Having heard learned advocate appearing for the petitioners and having gone through the impugned order passed by the learned Small Causes Judge and having considered averments made in the memo of present Civil Revision Application, the Court is of the view that issue raised by the petitioners is squarely covered by the decision of this Court in the case of Bai Maru D/o Muman Dosan Khanji (Supra). This Court while deciding the said issue have extensively dealt with the provisions contained in Order 23, Rule 1(2) which is pari- materia with the present Rule (3) of Order 23 after the amendment of 1976. This Court while deciding the said issue have extensively dealt with the provisions contained in Order 23, Rule 1(2) which is pari- materia with the present Rule (3) of Order 23 after the amendment of 1976. The Court has observed that if the plaintiff was entitled to the reliefs claimed in the suit notwithstanding the fact that he was not the sole owner of the lands but was only one of the co-owners, the application for permission to withdraw the suit under Order 23, Rule 1(2) of the Civil Procedure Code could obviously not be granted for it could not be said in that event that there was any formal defect which was fatal to the suit or that there was any sufficient ground for allowing the plaintiff to institute a fresh suit in respect of the subject- matter of the suit. If on the other hand the plaintiff was not entitled to the reliefs claimed in the suit on the ground that he was not the sole owner of the lands but was only one of the co-owners, the application for permission to withdraw the suit under Order 23, Rule 1(2) could equally not be granted, for the defect could not be said to be a defect of form but was a defect which affected the merits of the case. The question whether the plaintiff was entitled to the reliefs claimed in the suit having regard to the fact that he was not the sole owner of the lands but was merely one of the co-owners was a question which affected the merits of the case. The defence of the defendant that the plaintiff should not be given any of the reliefs claimed by him because he had no title to claim those reliefs was a defect affecting the merits of the case and could not possibly be said to be a defence based on any formal defect in the case of the plaintiff or on any defect analogous to formal defect. If the defendant s contention was correct the suit of the plaintiff would fail not by reason of any formal defect or any defect analogous to formal defect but by reason of the inability of the plaintiff to make good the title claimed by him in the plaint. Under the said circumstances the Court did not grant permission to withdraw the suit under Order 23, Rule 1(2). Under the said circumstances the Court did not grant permission to withdraw the suit under Order 23, Rule 1(2). The Court has also considered the decision of Division Bench of the Bombay High Court in the case of Asian Assurance Co. v. Madholal, reported in AIR 1950 Bombay 378. In that case also the only defect on which the plaintiffs relied in support of their application for permission to withdraw the suit under Order 23, Rule 1(2) was that two parties who should have been made parties to the suit were not so made and, therefore, the suit suffered from the defect of non-joinder of necessary parties. The Court, therefore, held that it was clear that no ground existed which entitled the plaintiff to obtain permission to withdraw the suit with liberty to institute a fresh suit in respect of the same subject-matter under Order 23, Rule 1(2) and that the learned Civil Judge acted illegally or with material irregularity in granting such permission. The Court accordingly allowed the Revision Application and set aside the order passed by the learned Civil Judge granting permission to the plaintiff to withdraw the suit with liberty to file fresh suit on the same cause of action under Order 23, Rule 1(2) of the Civil Procedure Code. 10. This decision is squarely applicable to the facts of the present case. Under Order 23, Rule 1(3), whether 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. Since non-joinder of co-owners as parties in the suit is not a formal defect, the Court should not grant the permission to withdraw the suit with a liberty to file a fresh suit on the same cause of action. It has come on record that the present petitioners have raised the specific objection in their written statement. Despite this fact no action was taken by the respondent. The suit was proceeded and evidence was led, arguments were also over and when judgment was about to be declared the respondent has moved present application which is grossly delayed and at belated stage the Court should not have entertained such application. Despite this fact no action was taken by the respondent. The suit was proceeded and evidence was led, arguments were also over and when judgment was about to be declared the respondent has moved present application which is grossly delayed and at belated stage the Court should not have entertained such application. The impugned order is, therefore, contrary to the provisions contained in Order 23, Rule 1(3)(a) of the Civil Procedure Code and also contrary to the binding decision of this Court. The impugned judgment and order is, therefore, quashed and set aside. The present Civil Revision Application is accordingly allowed without any order as to costs. Revision allowed.