JUDGMENT N. Chaudhury, J. 1. Heard Mr. T.C. Khatri, learned Sr. counsel assisted by Mr. S.K. Jain, learned counsel for the petitioner. Also heard Mr. A.K. Roy, learned counsel for the opposite parties. By this revision petition the petitioner has challenged the order dated 11-01-2013 passed by learned Civil Judge, Kamrup in Title Suit No. 277/2008, thereby allowing the application of the plaintiffs/opposite parties to withdraw the said suit with liberty to file fresh suits. By filing the application under Order XXIII Rule 1(3) of the CPC before the learned Court, the plaintiff stated that in the pending title suit two cause of action were erroneously clubbed together and the plaintiffs themselves being ignorant about the legal provisions and procedures instituted the suit as advised by their learned counsel. But subsequently on 29-06-2012, when the necessity for changing their former legal counsel and engaging a new set of legal counsel arose, they were instructed for the first time that the suit is likely to fail in view of the erroneous mis-joinder of the cause of action and as such it is necessary to file appropriate application craving leave of the Court to withdraw the suit for liberty to file fresh suits. The defendant petitioner submitted objection there against wherein it was not disputed that the defect had stated in the application under Order XXIII Rule 1(3) CPC are really not formal defects. However, but the defendants challenged the same on the ground that they having raised objection as to maintainability of the suit and having made prayer for framing a preliminary issue under Order XIV Rule 2(2) of the CPC, the learned Court ought to have decided the said issues and without doing that the plaintiffs ought not to have been permitted to leave to withdraw the suit for filing a fresh. 2. After hearing learned counsel for the parties, the learned trial court came to the finding that ground of mis-joinder of cause of action is a formal defect within the meaning under Order XXIII rule 1 CPC and as such it was a fit case to exercise jurisdiction for granting leave to the plaintiffs to withdraw the suit with liberty to file fresh suits and thereby allowed the prayer vide order dated 11-01-2013. 3. In course of arguments the learned Sr. 3. In course of arguments the learned Sr. counsel appearing for the petitioner has fairly admitted that erroneous clubbing of two separate causes of action amount to formally defect. Although learned Sr. counsel has submitted that the plaintiffs have filed the application only after the defects have been shown by the defendants while raising a preliminary issue under Order XIV rule 2 CPC and as such the same ought to have been decided dismissing the suit without granting leave to the plaintiff for filing fresh suits. 4. The only point that falls for determination in this case as to whether the order dated 11-01-2013 allowing the plaintiffs to withdraw their suit with liberty to file fresh suit is vitiated by jurisdictional error. The Order XXIII Rule 1(3) CPC provides that when the Court is satisfied that a suit is likely to fail due to formal defects or that there are other sufficient grounds for allowing the plaintiffs to withdraw the suit to institute a fresh suit for the subject matter of the suit or a part of the claim the court may allow the plaintiffs to withdraw form the suit that liberty to institute fresh suit in respect of the subject matter. So the condition precedent for exercising jurisdiction under this rule is only existence of formal defects with potentiality of causing failure of the suit. 5. In view of the above and on consideration of the submission of the learned counsel of the parties it appears that the sole condition precedent, namely, existence of formal defect having fatal consequence for the suit is very much present in this case and as such the order dated 11-01-2013 passed by the learned Civil Judge cannot be said to have been passed in erroneous exercise of jurisdiction. 6. The revision petition, therefore, has no merit and the same is accordingly dismissed. No order as to cost. Petition dismissed