JUDGMENT : This revision application under section 115, Civil Procedure Code has been filed at the instance of plaintiffs against the order dated 18-7-2012 passed by learned Second Civil Judge, Class-II, Gadanvara, District Narsinghpur in Civil Suit No. 38-A/2010 whereby the application under Order XXIII, Rule 1(3), Civil Procedure Code filed on behalf of the plaintiff-applicants has been dismissed. 2. The present applicants are the plaintiffs. A suit for declaration that the plaintiffs are having ½ share in the suit property and accordingly they are entitled for getting the property in question partitioned and for separate possession has been filed by the plaintiffs arraying Gangaram as first defendant and State of M. P. as formal defendant No. 2. According to the plaintiffs, the land in question belonged to Late Baliram who was having two sons, namely, Gangaram (first defendant) and Ramprasad (dead). The plaintiffs are the daughters and the widow of the deceased Ramprasad. During the pendency of the suit it came into the knowledge of the plaintiffs that the first defendant Gangaram got the names of his sons Udham Singh, Ramsingh, Malkhan and Moolchand mutated in the revenue record and earlier this fact was not in their knowledge and therefore, the sons of first defendant could not be impleaded as defendants in the suit. This fact came into their knowledge only when this objection was raised by the first defendant in his written-statement. Eventually, on 4-1-2011 the plaintiffs filed an application to implead those persons as defendants but the said application was rejected. Thereafter, an application under Order XXIII, Rule 1(3), Civil Procedure Code has been filed by the plaintiffs praying that they be permitted to withdraw the suit with liberty to file fresh suit. Learned trial Court rejected that application. Hence, this revision has been filed by the plaintiffs. 3. By placing heavy reliance upon the single Bench decision of this Court Mst. Chhabili Dullaiya vs. Lallu in Second Appeal No. 218/1961 decided on 8-12-1964 which has been digested in 7965 MPLJ Note 99 it has been put forth by learned counsel for the applicants that a suit can be permitted to be withdrawn if it suffers from formal defect. By placing heavy reliance upon the single Bench decision of this Court Mst. Chhabili Dullaiya vs. Lallu in Second Appeal No. 218/1961 decided on 8-12-1964 which has been digested in 7965 MPLJ Note 99 it has been put forth by learned counsel for the applicants that a suit can be permitted to be withdrawn if it suffers from formal defect. Learned counsel submits that this decision was also in respect to partition suit and because some of the necessary parties could not be joined no effective decree of partition can be passed and therefore, this Court allowed the prayer to withdraw the suit with liberty to file fresh suit. The contention of learned counsel is that the aforesaid decision is squarely applicable in the present case because in the instant suit also the sons of first defendant were not joined as parties to the suit and therefore, it amounts to a formal defect and hence, learned trial Court by rejecting the application under Order XXIII, Rule 1(3), Civil Procedure Code has acted illegally with material irregularity in exercise of its jurisdiction. Hence, it has been prayed that by allowing this revision application the application under Order XXIII, Rule 1(3), Civil Procedure Code be allowed. 4. On the other hand, Shri Kaurav, learned counsel for the respondent No. 1 argued in support of the impugned order and submitted that if there is a defect of non-joinder or mis-joinder of necessary party this will not come within the ambit and sweep of 'formal defect' as envisaged under Order XXIII, Rule 1(3), Civil Procedure Code and therefore, rightly the application has been rejected by learned trial Court in that regard. In support of his contention learned counsel has placed heavy reliance upon the single Bench decision of this Court Vinod Kumar Gupta vs. Smt. Ramadevi Shivhare and another, 2008(2) MPLJ 151 = 2007 (III) MPWN 112 . Hence, it has been prayed that this revision application be dismissed. 5. I have heard learned counsel for the parties. According to me, the provision envisaged under Order XXIII, Rule 1(3), Civil Procedure Code can be set in motion and the permission to withdraw the suit with liberty to file fresh suit can be granted only when the defect pointed out is formal one and not substantial one. 5. I have heard learned counsel for the parties. According to me, the provision envisaged under Order XXIII, Rule 1(3), Civil Procedure Code can be set in motion and the permission to withdraw the suit with liberty to file fresh suit can be granted only when the defect pointed out is formal one and not substantial one. I may further add that the object of this provision is not to permit the plaintiff to file a fresh suit if he has failed to conduct the suit with care and diligence, but, to prevent technical defect in rendering the justice. The expression 'formal defect' connotes defects of various kinds not affecting the merits of the case, which according to me, would mean a defect in the nature prescribed by rules of procedure. If the procedural rules under Order I, Civil Procedure Code are seen, this Court finds that the Order I, Civil Procedure Code pertains to the impleadment of the parties to the suit and Rule 3 prescribes that all the persons may be joined in one suit as defendants where any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative and further if separate suits were brought against such persons, any common question of law and fact would arise. At that same time, while considering the said application the Court should see that the object to allow this application as to whether with care and diligence without impleading some of the coparceners in the suit was filed for which the withdrawal is sought with liberty to file fresh suit. 6. Thus, by testing aforesaid ingredients on the touchstone and anvil of the present factual scenario it is found that the instant suit for partition has been filed by the present plaintiffs-applicants with an averment that they are the daughters and widow of Late Ramprasad who was the son of Baliram and who was the owner of the suit property. The suit has been filed against first defendant Gangaram who is son of Late Baliram, for partition and for separate possession of the half portion of the suit property. Thus, under Order I, Rule 3, Civil Procedure Code they are bound to implead all the necessary parties in order to obtain an effective decree. The suit has been filed against first defendant Gangaram who is son of Late Baliram, for partition and for separate possession of the half portion of the suit property. Thus, under Order I, Rule 3, Civil Procedure Code they are bound to implead all the necessary parties in order to obtain an effective decree. It is borne out from the impugned order itself that having taken objection in the written-statement by defendant Gangaram that property in question has been mutated in the names of the sons of first defendant, namely, Udham Singh, Ramsingh, Malkhan and Moolchand, and at that juncture only they came to know that the suit property has been entered in their names. Thus, they have filed an application to implead them as party but unfortunately it was rejected by the learned trial Court. In these circumstances, it can be inferred and said that the plaintiffs who are the daughters and the widow of the deceased Ramprasad although filed suit with care and due diligence, but they were totally unaware that the suit property has been recorded in the name of sons of the first defendant and therefore, according to me, with due care and diligence they were not impleaded as party to the suit. 7. According to me, in the suit for partition looking to the family tree, the plaintiffs are the members of the branch of Late Ramprasad who was the son of Baliram and first defendant is also the son of Late Baliram meaning thereby Late Ramprasad and first defendant are real brothers. Udham Singh, Ramsingh, Malkhan and Moolchand are the members of the branch of first defendant. According to me, in a suit for partition by one branch against other branches the heads of the branch alone are necessary parties. The other members of the branch although they are not necessary but they may be proper parties. I may further add that in a partition of joint Hindu family property of two branches, any one member of one branch can maintain a suit for partition and separate possession of share of his branch and the suit cannot be dismissed for non-impleading of members of other branch. Thus, according to me, an effective decree can be passed without impleading Udham Singh, Ramsingh, Malkhan and Moolchand who are the sons of first defendant. 8. Thus, according to me, an effective decree can be passed without impleading Udham Singh, Ramsingh, Malkhan and Moolchand who are the sons of first defendant. 8. In the present case, unfortunately learned trial Court rejected the application under Order I, Rule 10, Civil Procedure Code filed on behalf of the plaintiffs to implead the sons of first defendant Gangaram as parties to the suit. As a matter of fact, they were proper parties and the Court ought to have allowed that application particularly when the suit is for partition. However, since the suit has not been finally adjudicated and no right has been accrued upon first defendant Gangaram on account of lapse to implead his sons as parties, therefore, the application which was filed under Order XXIII, Rule 1(3), Civil Procedure Code by the plaintiffs would come under the ambit and sweep of formal defect. 9. In absence of any indication of categorization or classification of the suit to which Order XXIII, Rule 1(3), Civil Procedure Code is to be made applicable, this provision is also applicable to the partition suit. The cause of action for seeking partition of joint Hindu family property is a recurring cause of action and even if one suit is dismissed as withdrawn second suit for partition of the property is not barred because in a partition suit the defendant who is entitled to a particular share is also in the position of plaintiff. I have called the disposed of file of S.A. No. 218/1961, Mst. Chhabili Dullaiya vs. Lallu and another from the record room and according to me, decision passed in Mst. Chhabili Dullaiya (supra) is squarely applicable in the present case because that suit was also for partition and the plaintiff of that suit prayed to withdraw his suit with liberty to bring a fresh suit for partition of joint Hindu family property belonging to joint family for the same cause of action. This Court in the said decision held that the expression 'formal defect' must be given a wide liberal meaning and it was further held that the mis-joinder or non-joinder of the parties is a formal defect within the meaning of Order XXIII, sub-rule (3) of Rule 1, Civil Procedure Code. This Court in the said decision held that the expression 'formal defect' must be given a wide liberal meaning and it was further held that the mis-joinder or non-joinder of the parties is a formal defect within the meaning of Order XXIII, sub-rule (3) of Rule 1, Civil Procedure Code. For better understanding it would be relevant to quote the aforesaid judgment in its entirety, which reads thus :- "This is a second appeal arising out of a suit for partition filed by respondent No. 1 Lallu against the widow and daughter of one Ajuddhi Jadiya, who, is alleged, was his father's cousin. Hiralal, who was his cousin (once removed) was also joined as a party defendant. It appears from the genealogy filed with the plaint that one Udho has three sons: Pragi, Mathura and Patami. Hiralal is one of the grandsons of Pragi, the other two being: Punnu and Ramprasad. Lallu belongs to the branch of Mathura. But there is another son of Mathura, named Nandi, and this Nandi has also a son, named Dipchand. Similarly, the branch Patami is represented by his son Ajuddhi, whose wife and daughter have been joined as party defendants to the suit. There is no explanation on record, even though a specific objection in this behalf was taken, why the other members of the family, who are alive, have not been joined as party defendants to this partition suit. As belonging to the branch of Udho, they all would have an interest in joint family property. 2. During the course of argument, it transpires that the suit must fail by reason of the non-joinder of necessary parties to this suit for partition. The learned counsel for the respondent-plaintiff then prayed leave to withdraw his suit with liberty to bring a fresh on the same cause of action, namely, for a partition of the joint family property belonging to the joint family of which Lallu, Hiralal and Ajuddhi, amongst others, are members. 3. Under sub-rule (2) of Rule 1 of Order 23 of the Code of Civil Procedure, where the Court is satisfied that a suit must fail by reason of some formal defect, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. The expression 'formal defect' must be given a wide and liberal meaning: See Ramrao Bhagwantrao vs. Babu Appanna, I.L.R. 1940 Bom. 299 (F.B.); and it is settled law that a mis-joinder or a non-joinder of parties is a formal defect within the meaning of this rule, if by reason of such mis-joinder or non-joinder, the suit must fail: see R. Watson and Co. vs. Collector of Zillah Rajshahye, 13 Moo Ind App 160(170) and Asian Assurance Co. vs. Madholal, AIR 1950 Bom.378. In the instant case, this being a suit for partition of joint family property, all persons interested in that property were necessary parties to the suit and in their absence the suit was bound to fail. Consequently, their non-joinder was a formal defect by reason of which the suit was bound to fail. 4. In the result, in my opinion, this is a fit case in which the plaintiff can be allowed to withdraw the suit with liberty to institute a fresh suit in respect of the subject-matter covered by it. 5. Necessary permission is, therefore, granted to the plaintiff. There shall be no order as to costs." Unfortunately, this decision was not brought to the notice of learned single Judge in the decision of Vinod Kumar Gupta (supra), as it is apparent from para 9 of the said decision. This apart, the mis-joinder of parties is a formal defect and this has also been so held by the Privy Council in Robert Watson and Co. vs. Collector of Zillah Rajshahye, Dost Mahomed Khan Chowdhry and others, 13 Moo Ind App 160 wherein it has been held as under :- "There is no power in the Courts in India, similar to that exercised by Courts of Equity or Common Law in England, to dismiss a suit with liberty for the Plaintiff to bring a fresh suit for the same matter, or to enter a non-suit. Such power of the Indian Courts is limited to questions of form, as in the case (1) of mis-joinder of parties, or of the matters in suit, (2) where a material document has been rejected for not having a proper stamp, and (3) if there has been an improper valuation of the subject-matter of the suit; but not to a case where the issue has been joined, and the Plaintiff fails to produce the evidence he is bound to give to support the issue." This decision of the Privy Council was also not brought to the notice of learned single Judge in Vinod Kumar Gupta (supra). Apart from this, the decision of Vinod Kumar Gupta (supra) was not a suit for partition, on the contrary, it was filed by the plaintiff of that suit on the ground of adverse possession. However, the instant suit is for partition and as it has already been held by me in the foregoing paragraphs that the cause of action for seeking partition of joint property is a recurring cause of action, therefore, there was no bar in filing an application to withdraw the suit with liberty to file afresh. 10. The application of plaintiffs filed to implead the sons of first defendant as party was rejected by learned trial Court on 4-1-2011. The rejection of that order can even be assailed in case appeal under section 96, Civil Procedure Code is filed because in regular first appeal every interlocutory order passed by trial Court is open to challenge except those orders which have attained finality under Order XLIII, Rule 1, Civil Procedure Code. 11. The rejection of that order can even be assailed in case appeal under section 96, Civil Procedure Code is filed because in regular first appeal every interlocutory order passed by trial Court is open to challenge except those orders which have attained finality under Order XLIII, Rule 1, Civil Procedure Code. 11. However, in the interest of justice and in order to avoid multiplicity of the suit by filing another suit against the sons of first defendant Gangaram and to make a prayer in the later suit to consolidate both the suits, it would be just and fair and also for the ends of justice since all the plaintiffs are ladies as they are daughters and widow of late Ramprasad, that if they file an application before the learned trial Court to review its order dated 4-1-2011 to implead the aforesaid sons of first defendant as party to the suit, the same may be considered sympathetically on the grounds mentioned hereinabove and by also paying heed that the plaintiffs are having recurring cause of action, therefore, still those persons may be added as defendants. If such an application is filed by the plaintiffs, the same may be decided without entering into the question of limitation on payment of suitable costs. 12. With the aforesaid observations, this revision application is disposed of. The parties are hereby directed to appear in the trial Court on the date fixed. No costs. Order accordingly.