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2014 DIGILAW 602 (HP)

Nand Kumar v. Gajinder Singh

2014-05-20

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge. This revision petition is preferred by the defendants against the order, dated 21.2.2005 passed by the learned Civil Judge (Senior Division), Rampur ,Bushahr, District Shimla in case No. 84-1/2003 whereby he allowed the application filed by the plaintiff under Order 23 Rule 1(3) read with section 151 CPC and permitted the plaintiff to withdraw the suit with liberty to file afresh on the same cause of action subject, however, to the law of limitation and on payment of Rs.1000/- as cost to the defendants. 2. The facts in brief may be noticed. The plaintiff filed an application for withdrawal of the suit on the ground that there was formal defect in the suit inasmuch as the plaintiff could not annex the necessary Tatima in respect of the encroached portion of the suit land as the same was not supplied to him by the concerned Patwari and in absence thereof it would not be possible to pass an executable decree. It was further alleged that he had already approached the settlement authorities for correction of wrong revenue entries prepared during the recent settlement and that the same was pending for adjudication. 3. The application was resisted and contested by the defendants mainly on the ground that application was filed at a belated stage and, therefore, was not maintainable. According to them, they raised a specific objection in this behalf at the earliest available opportunity i.e. at the time of filing the written statement on 20.12.2003 and despite the same the plaintiff did not take necessary steps and proceeded with the suit whereby he not only led his evidence in the affirmative but after recording the evidence of the defendants had even led his evidence in rebuttal. The present application was filed only when the case was listed for arguments. This application was filed with the malafide intention as by this time, the plaintiff was well aware that his suit would not succeed and would be dismissed. The further case of the defendants is that plaintiff himself had got conducted the demarcation of the suit land from the Field Kanungo and Naib Tehsildar, Rampur, but he had not filed necessary demarcation report nor had produced the revenue officials as witnesses. Thus according to the plaintiff, the non-production of necessary evidence on behalf of the plaintiff would not constitute a formal defect in the suit. Thus according to the plaintiff, the non-production of necessary evidence on behalf of the plaintiff would not constitute a formal defect in the suit. As regards the pendency of application for correction of revenue records, it was claimed that same could not furnish a ground to the plaintiff to withdraw the suit. 4. In so far as the main dispute inter se the parties is concerned, the same is with respect to the boundaries wherein land denoted by khasra No. 152 belongs to the plaintiff and other co-sharers, while the land comprised in khasra No. 147 belongs to the defendants. Both the lands are situated adjacent to each other. The case of the plaintiff is that defendants have encroached upon a portion of his land while raising construction, whereas the defendants have denied this aspect of the case and have tried to show that the construction raised by them is well within their land. 5. During the pendency of the suit, an application for appointment of Local Commissioner to ascertain the correctness of the boundaries was preferred by the plaintiff but the said application came to be dismissed on 8.11.2004. 6. The learned trial court while allowing the application under Order 23 Rule 1(3) CPC has held that delay in filing the application was inconsequential since there was formal defect in filing the suit, which may entail dismissal of the suit. In fact, the judgements relied upon by the defendants i.e. ”2001(3) CCC 676, Punjab & Haryana”, “S.L.C.2003(2)24 H.P.”, “2000(5)SCC 158”, “A.I.R. 2003 Karnataka 164”, “2000(2) CCC 545 Punjab & Haryana”, “AIR 1940 Bombay 121” and “A.I.R.1954 All. 845” though find mention in the order, however, the same were simply brushed aside by observing “I have carefully gone through the aforesaid rulings and of the view that the ratio laid down in these cases could not be made applicable in the present facts and circumstances of the case.” 7. At the outset it may be observed that the manner in which the learned court below has dealt with this aspect of the matter cannot be countenanced. It was not only imperative but the law casts an obligation on the court to deal with each and every judgement cited before it and record reasons as to how and why the judgements cited before it are applicable or not applicable (as the case may be) to the facts of the case. It was not only imperative but the law casts an obligation on the court to deal with each and every judgement cited before it and record reasons as to how and why the judgements cited before it are applicable or not applicable (as the case may be) to the facts of the case. This shows total callous approach of the learned court below and also reflects total non-application of mind. The court owed a responsibility to first deduce the ratio of the law and in case he was of the opinion that the law cited before him was not applicable to the facts of the case, then those facts and circumstances ought to have been discussed. 8. It is settled legal proposition that not only the administrative but also judicial orders must be supported by reasons recorded in it. Therefore, while deciding an issue, the court is bound to give reasons for its conclusion. The reasons are not only to be confined for the conclusions it reaches but also have to be recorded when judgements are cited before it and according to the court the same are not applicable to the given facts and circumstances of the case. The court cannot shirk away or be oblivious of its duty of not discussing the judgements referred to during the course of arguments, that too, by a non-speaking order and without assigning any reasons whatsoever. 9. The Hon’ble Supreme Court in Sant Lal Gupta and others vs. Modern Cooperative Group Housing Society Limited and others (2010) 13 SCC 336 has summed up the legal position in the following manner:- “27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. “3…….The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind.” The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. [Vide: State of Orissa v. Dhaniram Luhar AIR 2004 SC 1794 ; State of Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC 573 ; Vishnu Dev Sharma v. State of Uttar Pradesh & Ors. (2008) 3 SCC 172 ; Steel Authority of India Ltd. v. Sales Tax Officer (2008) 9 SCC 407 ; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi (2008) 11 SCC 205 ; U.P.S.R.T.C. v. Jagdish Prasad Gupta (2009)12 SCC 609 ; Ram Phal v. State of Haryana (2009) 3 SCC 258 ; State of Himachal Pradesh v. Sada Ram (2009) 4 SCC 422 ; and The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity, 2010(3)SCC 732).” 10. I have heard Sh. I have heard Sh. K.D. Sood, learned Senior Advocate assisted by Sh. Rajnish K. Lall, Advocate for the petitioner. The learned counsel for the petitioner has vehemently argued that there was no formal defect in the plaint. In fact the so called defect could have been removed by amendment of the pleadings or evidence and was not a “formal defect”. It was further contended that the plaint itself did not contain full description of the property and boundaries of the suit land, which could have been rectified by filing a Tatima and having carried out demarcation by the plaintiff on the spot and preparing a plan. The entire evidence in the case had been led and it was at the final stage, therefore, the suit could not have been withdrawn with an ulterior motive to harass the defendants. The entire approach of the court below in the facts and circumstances of the case was erroneous as it has failed to take into consideration the provisions of Order 23, Rule 1(3) of CPC in its proper perspective and has misconstrued and mis-applied to the facts of the case. 11. On the other hand, Sh. R.K. Bawa, learned Senior Advocate assisted by Sh. Ajay Sharma, Advocate, appearing for respondent No.1 has argued that order passed by the learned trial court is in accordance with law and a formal defect in the suit would continue to remain a formal defect despite the suit having proceeded and being ripe for arguments. 12. Sh. K.D.Sood, learned Senior Counsel in support of his contention that defect was not formal has relied upon the judgement of this Court in Smt. Savitri Devi vs. Hira Lal AIR 1977 HP 91 , wherein, it has been held as follows: “2. The plaintiff filed a suit for declaration that he was the owner in possession of the disputed land. During the pendency of the suit he discovered that the land had been acquired by the State Government. Accordingly, he applied under Order 53, Rule 1 (2) of the Code of Civil Procedure for permission to withdraw the suit with liberty to file a fresh suit. The basis of the application was that as the land had been acquired by the State Government the suit must fail by reason of a formal defect inasmuch as the State was not a party to the suit. The basis of the application was that as the land had been acquired by the State Government the suit must fail by reason of a formal defect inasmuch as the State was not a party to the suit. The learned Subordinate Judge allowed the application and by his order dated October 3, 1974 dismissed the plaintiff's suit granting permission to file a fresh suit. 3. In this revision petition, learned counsel for the defendant-petitioner urges that the conditions of Order 23 Rule 1 (2) of the Code are not satisfied. It is urged that having regard to the pleadings in the case the State Government was a necessary party, and therefore it cannot be said that it was by reason of a formal defect that the suit was liable to fail. The omission to implead a necessary party, it is urged, is not a formal defect, and support is taken from Tarachand Bapuchand v. Gaibihaji Ahmed Bagwan, AIR 1956 Bom 632 and Ram Padarath v. Data Din, AIR 1941 Oudh 417. There is force in the contention. The omission to implead a necessary party cannot be described as a formal defect. It is a material defect. Consequently, the learned Subordinate Judge erred in applying the provisions of Order 23 Rule 1 (2) of the Code of Civil Procedure and making the order which he has.” 13. He further contended that plaintiff cannot be allowed to withdraw the suit when he failed to produce and prove the Tatima on record and was fully aware of the fact that suit would ultimately be dismissed. Even otherwise according to the learned counsel for the petitioner there was no question of granting liberty to the plaintiff to file a fresh suit on the same cause of action since Tatima could conveniently be placed on the record by amending the plaint under the provisions of Order 6 Rule 17 CPC. For this purpose he relied upon Sadhu Ram vs. Anto Devi 2000 (2) Civil Court Cases 545 (P&H), wherein, it has been held as under:- “5. Learned counsel for the petitioner submitted that the non submission of the site plan with the plaint was not a formal defect and therefore, plaintiffs could not have been permitted to withdraw the suit with permission to file fresh suit on the same cause of action. Learned counsel for the petitioner submitted that the non submission of the site plan with the plaint was not a formal defect and therefore, plaintiffs could not have been permitted to withdraw the suit with permission to file fresh suit on the same cause of action. Learned counsel for the petitioner submitted that the Courts have jurisdiction to grant permission to withdraw the suit with liberty to institute another suit on the same cause of action only for reasons falling within the ambit of Order 23 Rule 1(2)(a) CPC or for any grounds which, though they may not be exactly "ejusdem generis" to the same but still are somewhat analogous to them. A plaintiff cannot be allowed to withdraw the suit when he has failed to adduce proper evidence in the suit and when he knows that his suit is bound to be dismissed for want of proof. The court, in granting such a permission on grounds not warranted by law, acts beyond its jurisdiction or at any rate illegally or with material irregularity in the exercise of its jurisdiction. In support of this submission, he has drawn my attention to Bhag Mal v. Master Khem Chand, A.I.R. 1961 Punjab 421. It was submitted that if the plaintiffs had not attached site plan with the plaint showing the portion alleged to have been encroachad upon by the defendant, that was not a formal defect. Learned counsel for the petitioner submitted that non-production of the site plan is not a formal defect. It is case of non-production of evidence in support of their case by the plaintiffs. It is not a sufficient cause to allow them to withdraw suit with permission to file another suit on the same cause of action. In support of this submission, he cited Chander and Ors. v. Gulzari Lal and Ors., (1979) 81 P.L.R. 637. He submitted that plaintiffs' evidence was closed by the Court. Thereafter, they moved application for additional evidence which was also dismissed. They moved application for framing additional issues which was also dismissed. In support of this submission, he cited Chander and Ors. v. Gulzari Lal and Ors., (1979) 81 P.L.R. 637. He submitted that plaintiffs' evidence was closed by the Court. Thereafter, they moved application for additional evidence which was also dismissed. They moved application for framing additional issues which was also dismissed. Defendant had also concluded his evidence; At that later state, plaintiffs could not have been permitted to withdraw the suit with permission to file another suit on the same cause of action because if they are permitted to file another suit on the same cause of action at this stage of the case, they would fill up the lacuna which had crept in the suit. 6. In my opinion, the learned counsel for the petitioner rightly submitted that the grant of permission to the plaintiff to withdraw the suit with liberty to file another suit on the same cause of action was not warranted. So, this revision is allowed. With the allowing of the revision, suit gets revived. Respondents-plaintiffs may apply for amendment of the plaint under Order 6 Rule 17 read with Section 151 CPC. Learned District Judge, Ambala will entrust this suit to some Civil Judge posted at Jagadhri for its disposal according to law. Civil Judge, to whom this suit is entrusted for its disposal will summon both the parties and then commence upon the trial of the suit.” 14. It was next contended that since the fault squarely lies on the plaintiff, wherein he had failed to place on record the Tatima despite specific objection having been taken in the written statement, therefore, he cannot be permitted to take advantage of his own wrong and consequently cannot be permitted to withdraw the suit with liberty to file a fresh one on the same cause of action. For this purpose, the petitioner has relied upon Rev. Y. Jagan Nath vs. Amritsar Diocesan Trust Association Amritsar 2001(3) Civil Court Cases 676 (P&H), wherein, it has been held as follows:- “10. The defects as pointed was due to the plaintiffs own fault and these defects were pointed out by the defendants in the written statement. Thus, the plaintiffs was aware of the same, yet they tried to avoid it. The defects as pointed was due to the plaintiffs own fault and these defects were pointed out by the defendants in the written statement. Thus, the plaintiffs was aware of the same, yet they tried to avoid it. Thus, in such circumstances, if the defect is due to the plaintiffs own fault, the Court would be acting illegally and with material irregularity in the exercise of its jurisdiction in permitting the plaintiff to withdraw the suit and to file a fresh one on the same cause of action. The plaintiff cannot take the benefit of Order 23 Rules I and 2 CPC at the stage of appeal, in this regard, reliance is also placed on Baru Ram and another v. Bal-deva and others, 1994 PLJ 144 : 1994(1) RCR(Civil) 702 (P&H).” 15. The learned counsel for the petitioner further contended that plaintiff himself had preferred an application for appointment of Local Commissioner to demarcate the land, which application was dismissed. The application, therefore, in such circumstances, was not bonafide as by now the plaintiff had realised the weakness of his case, which was bound to be dismissed, and, therefore, had malafidely filed the present application. He has placed reliance on the judgement of this court in Mangat Ram vs. Chura Dutt and another 2003 (2) Shim.L.C. 122 , wherein it has been held as follows:- “14. In the present case, the suit of the plaintiffs was dismissed on merits by the learned trial court by holding that no part of the land belonging to the plaintiffs had been encroached upon by the defendant. Therefore, the defendant had derived an advantage of the adjudication of the dispute by the learned trial Court. By permitting the plaintiffs to withdraw the suit, the learned first appellate Court has not only permitted the plaintiffs to avoid the decree passed against him by the learned trial Court, has also made the defendant to lose the advantage of adjudication of the dispute in his favour. 15. As pointed out above, the plaintiffs earlier had approached the learned first appellate Court under Order 26 Rule 9, Code of Civil Procedure, for appointment of a Local Commissioner to demarcate the land and to ascertain the extent of encroachment, if any, by the defendant. Such application was dismissed on 6.6.1998. 15. As pointed out above, the plaintiffs earlier had approached the learned first appellate Court under Order 26 Rule 9, Code of Civil Procedure, for appointment of a Local Commissioner to demarcate the land and to ascertain the extent of encroachment, if any, by the defendant. Such application was dismissed on 6.6.1998. By permitting the plaintiffs to withdraw the suit with liberty to bring a fresh suit on the same cause of action "after obtaining proper demarcation of the land in dispute" the learned first appellate Court has proceeded to set aside its own order, which it was not competent to do. 16. It was for the plaintiffs to frame their suit in any form as advised taking into consideration the nature of cause of action accruing to them. From the facts and circumstances of the case as emanating from the pleadings of the parties and the judgment of the learned trial Court as well as the impugned order of the learned first appellate Court, it is evident that the plaintiffs realised the weakness of their suit and in order to get over the findings against them recorded by the learned trial Court, they took recourse to Order 23 Rule 1(3), Code of Civil Procedure, for withdrawal of the suit with leave to file a fresh suit. Therefore, no leave could have been granted to the plaintiffs to withdraw the suit. The impugned order of the learned first appellate court is bad and cannot be sustained. 17. As a result the present petition is allowed. The impugned order dated 13.6.2000 of the learned first appellate court passed in Civil Appeal No. 2 of 1998 is set aside and the application made by the plaintiffs under Order 23 Rule 1(3), Code of Civil Procedure, is dismissed with costs, quantified at Rs. 2,200.” 16. It was next contended by the learned counsel for the petitioner that non-giving of complete description of the property, the plaintiff cannot be allowed to withdraw the suit, because complete description of the property can be given by amending the plaint, which otherwise would not change the nature of the suit. For this purpose, he has placed reliance on a judgement passed by this court in Dharampal vs. Nodhar Ram 2012 (2) Civil Court Cases 698 (H.P.), wherein, it has been held as under: “4. For this purpose, he has placed reliance on a judgement passed by this court in Dharampal vs. Nodhar Ram 2012 (2) Civil Court Cases 698 (H.P.), wherein, it has been held as under: “4. The other ground given was that complete description of the suit property, i.e. the path has not been given and the suit may be dismissed on this ground. The learned Trial Court has clearly observed that the plaintiff can move an application for amendment of the suit giving complete details of the property because this will not, in any manner, change the nature of the suit. The learned Trial Court has taken a correct view of the matter.” 17. In support of his aforesaid contention, he further placed reliance on Pardhan & Ors. vs. Mohar Singh & Ors. 2013 (1) Civil Court Cases 044 (P&H), wherein, it has been held as follows: “6. Counsel for the appellants contended that application moved by plaintiffs in the lower appellate court for withdrawal of the suit, with liberty to file fresh suit, has been erroneously dismissed by the lower appellate court. The contention cannot be accepted. The plaintiffs pursued the suit in the trial court on the basis of the boundaries mentioned in the plaint and annexed site plan. The suit was dismissed by the trial court vide judgment and decree dated 16.03.2006. First appeal was preferred on 15.04.2006. Aforesaid application was moved on 15.03.2010 i.e. after delay of four years after decision by the trial court. The suit also remained pending in the trial court for more than ten years. Thus, the plaintiffs moved the aforesaid application fourteen years after the filing of the suit, for which no justification is made out. Entire evidence was led by the plaintiffs and also by the defendants, on the basis of description of the suit property given in the plaint and site plan. After fourteen years, the plaintiffs (after having already lost in the trial court) could not be permitted to turn around and to plead that the suit property was not correctly described. The alleged defect also does not fall within the purview of Order 23 Rule 1 (3) of the Code of Civil Procedure (in short – CPC) as a formal defect or as other sufficient ground for permitting the plaintiffs to withdraw the suit at appellate stage, with liberty to file fresh suit. The alleged defect also does not fall within the purview of Order 23 Rule 1 (3) of the Code of Civil Procedure (in short – CPC) as a formal defect or as other sufficient ground for permitting the plaintiffs to withdraw the suit at appellate stage, with liberty to file fresh suit. The application moved by the plaintiffs in the lower appellate court has been rightly dismissed by the said Court.” 18. Lastly, the learned counsel for the petitioner has placed reliance on a judgement passed by a coordinate Bench of this court (Justice Rajiv Sharma, J.) in CMPMO No. 52 of 2012 titled Pankaj Soni vs. Inder Singh Chandel, decided on 25.10.2013, in support of his contention as to what would constitute a formal defect:- “6. …….. The learned District Judge has not given findings what was the formal defect in the suit permitting the plaintiff to withdraw the suit with liberty to institute a fresh suit on the same cause of action. The provisions of Order 23 Rule 1 CPC cannot be applied mechanically. The parties cannot be vexed twice for the same cause of action. The ratio laid down by their Lordships of Hon’ble Supreme Court in Bani Ram and ors. vs. Gain and ors, AIR 1982 SC 789 was wrongly applied by the learned District Judge while allowing the application. The facts of the judgment cited hereinabove were entirely different. In that case, a contention was advanced by Mr. Phadke on a particular point. He had conceded that it was not the case pleaded in the plaint. In view of this Mr. Phadke wished to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action. Their Lordships further held that non-pleading could prove a technical impediment and could result in the dismissal of the appeal which could impede a fresh adjudication if a point was to be made though belated, therefore, in the interest of justice the plaintiff was permitted to withdraw the suit with liberty to file a fresh suit. However, in the present case, there is neither any formal defect nor sufficient grounds/reasons have been assigned for permitting withdrawal of the suit. The learned District Judge has also come to the wrong conclusion that ratio laid down in AIR 1982 SC 789 was applicable in the present case. However, in the present case, there is neither any formal defect nor sufficient grounds/reasons have been assigned for permitting withdrawal of the suit. The learned District Judge has also come to the wrong conclusion that ratio laid down in AIR 1982 SC 789 was applicable in the present case. In the present case, Civil Suit No.158/2006 has been dismissed by the learned Civil Judge (Senior Division) on merits. The plaintiff could move an application under Order 6 Rule 17 CPC seeking amendment of the plaint instead of moving an application for withdrawal of the suit without making sufficient grounds/reasons, as contemplated under the law. It is true that the suit can be permitted to be withdrawn at the appellate stage, but a case is required to be made out. The suit has been dismissed by the learned Civil Judge (Senior Division) on merits and not on account of any formal defect. 7. Division Bench of Bombay High Court in Asian Assurance Co. Ltd. vs. Madholala Sindhu , AIR 1950 Bombay 378 held that a defect of non-joinder of some of the parties to the suit is not a formal defect contemplated by Order 23 Rule 1 (2) CPC. Learned Division Bench held as under:- “4. Turning to the merits of the matter, although in this case the other side was not furnished with any affidavit which was made by the plaintiffs to satisfy the Judge that there was a formal defect and there is no judgment of the learned Judge from which we can ascertain what led the learned Judge to make this order, it is clear from the affidavit which was prepared that the only formal defect on which the plaintiffs relied 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. Surely, in our opinion, that is not a formal defect contemplated by Order 23, Rule 1 (2). The defect contemplated by it is one by reason of which the suit must fail. In this case the suit could not have failed by reason of non-joinder. The easiest and the simplest thing for She plaintiffs to have done was to have made those parties to the suit. There is a further difficulty to which Mr. Amin has drawn our attention. In this case the suit could not have failed by reason of non-joinder. The easiest and the simplest thing for She plaintiffs to have done was to have made those parties to the suit. There is a further difficulty to which Mr. Amin has drawn our attention. The suit filed is a representative suit and, thereof ore, besides the plaintiffs all those whom the plaintiffs represent were interested in the fate of the suit and the plaintiffs have obtained this order without in any way consulting that class whom they represent. It is perfectly true that the Court can give its consent to the compromise or withdrawal of a representative suit. But normally the Court does not do so without directing that the plaintiff should advertise in the papers that he proposed to take a particular course of action, and if no objection is forthcoming, then the Court ordinarily passes the order. But it does not appear from the order made by the learned Judge that it was present to his mind that he was permitting a representative suit to be withdrawn without the persons represented by the plaintiffs being consulted at all.” 8. Division Bench of Allahabad High Court in Vidhydhar Dube vs. Har Charan , AIR 1971 Allahabad 41, has held that right of plaintiff to withdraw suit at appellate stage is not an absolute right but is subject to rights acquired by defendant under decree. Learned Division Bench further held that the Court may permit withdrawal if no vested or substantive right of defendant is to be adversely affected. Learned Division Bench held as under:- “4. The learned counsel for the applicant has contended that the court below was in error in holding that the plaintiffs had no absolute right to withdraw the suit at the appellate stage under Order 23, Rule 1(1), Civil P. C. His submission is that appeal is a continuation of the suit and hence even in appeal the plaintiffs can withdraw the suit. We do not find any merit in this contention. A plaintiff has a right to continue or withdraw a suit till a decree comes into existence. Once the court makes a final adjudication and passes a decree, certain rights become vested in the party in whose favour the decree is made. We do not find any merit in this contention. A plaintiff has a right to continue or withdraw a suit till a decree comes into existence. Once the court makes a final adjudication and passes a decree, certain rights become vested in the party in whose favour the decree is made. Where the suit is dismissed, certain rights become vested in the defendants inasmuch as the findings given in the judgment become binding on the parties and operate as res judicata in su bsequent litigation between the parties. The right of a plaintiff to withdraw the suit at the appellate stage thus becomes subject to the rights acquired by the defendants under the decree and ceases to be an absolute right. 5. Even when a suit is at the stage of trial and no decree therein has been passed, there may be cases where conceding an absolute right of withdrawal of suit to the plaintiff might result in serious injury to or jeopardize some valuable and substantive right of the defendant. A suit for accounts for instance may be filed by one of the partners of a dissolved firm. The defendants in such a suit may plead that the plaintiff himself is the accounting party and that on proper accounting they would be entitled to receive from him large sums of money, during the pendency of the suit it may become apparent that the suit is likely to culminate in a decree against him and he may seek to withdraw the suit. To hold that even under such circumstances that plaintiff has an absolute right to withdraw the suit, would be to acknowledge that the plaintiff's has an unfettered right to perpetrate fraud and dishonesty by defeating the legitimate rights of the defendants whose rights to file a fresh suit may have become barred by limitation. To hold that even under such circumstances that plaintiff has an absolute right to withdraw the suit, would be to acknowledge that the plaintiff's has an unfettered right to perpetrate fraud and dishonesty by defeating the legitimate rights of the defendants whose rights to file a fresh suit may have become barred by limitation. If under such or similar circumstances, it becomes difficult to concede an absolute right to the plaintiff of withdrawal of suit, much less can any such right be recognized when a decree has been passed and an appeal against the same has been preferred, Sub-rule (1) of Rule 1 of Order 23 of the Code does not in terms apply to appeals and, whatever may be the legal position in the trial court, in the appellate court the plaintiff, be he an appellant or a respondent, cannot be held to possess any absolute right to with draw the suit. 6. The appellate court may permit the plaintiff to withdraw the suit when by such withdrawal no vested or substantive right of the defendant is to be adversely affected but the plaintiff may not be permitted to withdraw the suit at the appellate stage if it results in depriving the defendant of some vested or substantive right. In the appellate court, the appellant may be held to have an absolute right to withdraw the appeal by equating the words "suit", "plaintiff" and "defendants" occurring in Order 23, Rule 1(1) of the Code with the words "appeal", "appellant" and "respondents" but he has no absolute right to withdraw the suit. The withdrawal of the appeal will not adversely affect the respondents if they have filed any separate appeal or a cross-objection as the same will remain unaffected. 10. In our opinion at the stage of appeal, the plaintiff, if be had filed the appeal, has the right to withdraw the appeal but not the suit except with the leave of the Court. The order of the court below thus suffers from no error of law or jurisdiction.” 9. Learned Single Judge of Gujarat High Court in Kurji Jinabhai Kotecha vs. Ambalal Kanjibhai Patel , AIR 1972 Gujarat 63 held that if it is a defect of form and not a defect which affects the merits of the case then only the case would fall under the provisions of Order 23 Rule 1 (2)(a). Learned Single Judge of Gujarat High Court in Kurji Jinabhai Kotecha vs. Ambalal Kanjibhai Patel , AIR 1972 Gujarat 63 held that if it is a defect of form and not a defect which affects the merits of the case then only the case would fall under the provisions of Order 23 Rule 1 (2)(a). Learned Single Judge held as under:- “........Bhagwati. J. (as he then was) in Bai Maru V. Latifalli. (1962) 3 Guj LR 800 has pointed out that the formal defect referred to in Order 23. Rule 1 (2) can only mean a defect of form and not a defect in the merits of the case. If it is a defect of form and not a defect which affects the merits of the case then only the case would fall under the provisions of Order 23, Rule 1 (2) (a). Gajendragadkar. J. (as he then was) has pointed out in Tarachand V. Gaibibhaji, AIR 1956 Bom 632 that Cls. (a) and (b) of Order 23, Rule 1(2) have to be read by applying the rule of ‘ejusdem generis’ and a cause which is sufficient within the meaning of Order 23, Rule 1 (2) must be similar or alike to the cause mentioned in Order 23, Rule 1 (2) (a). Under these circumstances, even on the allegations of the plaintiff himself, it cannot be said that there was a defect of form or a similar other defect from which first suit of the plaintiff was likely to fail. It was a defect on merits, namely, about the factum of Collector’s sanction having been granted or not granted which would have come in the way of the plaintiff in getting the reliefs that he had claimed. In any event, if the cause of action and the reliefs claimed in the first suit are not going to be the same as the cause of action and the reliefs claimed in the second suit, there was nothing which he had to fear and even by way of abundant caution it was not necessary for him to obtained permission which he applied for in the instant case.” 10. Learned Single Judge of Orissa High Court in Trinath Parida vs. Sobha Bholaini , AIR 1973 Orissa 37 held that non-joinder of a necessary party is not a mere formal defect so as to attract the applicability of Order 23 Rule 1 CPC. Learned Single Judge of Orissa High Court in Trinath Parida vs. Sobha Bholaini , AIR 1973 Orissa 37 held that non-joinder of a necessary party is not a mere formal defect so as to attract the applicability of Order 23 Rule 1 CPC. Learned Single Judge held as under:- “7. Opinion appears to be unanimous in all the High Courts that non-joinder of a necessary party is not a formal defect within the meaning of this rule. It is a defect which affects the root of the plaintiff's case and cannot be said to be a mere formal defect, (see AIR 1950 Bom 378 (Asian Assurance Co. Ltd. v. Madholal Sindhu and AIR 1956 Bom 632 , (Tarachand Bapuchand v. G.A. Bagwan). In the circumstances, the application filed under Order 23, Rule 1, Civil P. C. has to be dismissed.” 11. In Smt. Savitri Devi Vs. Hira Lal , AIR 1977 Himachal Pradesh 91, it was laid down that when the plaintiff after filing suit discovers that the suit land has been acquired and the Government has not been impleaded as party and plaintiff applied for permission to withdraw the suit with liberty to file fresh one. It was held that the defect was not formal as per Order 23 Rule 1 (2) of the Code of Civil Procedure. It was held as under:- “3 In this revision petition, learned counsel for the defendant-petitioner urges that the conditions of O. 23 R. 1 (2) of the Code are not satisfied. It is urged that having regard to the pleadings in the case the State Government was a necessary party, and therefore it cannot be said that it was by reason of a formal defect that the suit was liable to fail. The omission to implead a necessary party, it is urged, is not a formal defect, and support is taken from Tarachand Bapuchand V. Gaibihaji Ahmed Bagwan, AIR 1956 Bom 632 and Ram Padarath V. Data Din, AIR 1941 Oudh 417. There is force in the contention. The omission to implead a necessary party cannot be described as a formal defect. It is material defect. Consequently, the learned Subordinate Judge erred in applying the provisions of O. 23 R. 1 (2) of the Code of Civil Procedure and making the order which he has.” 12. There is force in the contention. The omission to implead a necessary party cannot be described as a formal defect. It is material defect. Consequently, the learned Subordinate Judge erred in applying the provisions of O. 23 R. 1 (2) of the Code of Civil Procedure and making the order which he has.” 12. Learned Single Judge of Punjab and Haryana High Court in Jubedan Begum vs.Sekhawat Ali Khan , AIR 1984 Punjab and Haryana 221 held that the words “at any time” under Order 23 Rule 1 would apply to the suit pending in the :trial Court. Once the decree is passed by the trial court, then certain rights are vested in the party in whose favour the suit is decided. Thus, the plaintiff is not entitled to withdraw the suit, as a matter of course, at any time after the decree is passed by the trial Court. Learned Single Judge held as under: “4. After hearing the learned counsel for the parties, I am of the considered view that the tower appellate Court has acted illegally in allowing the plaintiff in withdraw the suit after setting aside the judgment and decree of the trial Court dismissing the suit. The words "at any time" in Rule 1 of Order 23 of the Code would apply to the suit pending in the trial Court. Once the decree is passed by the trial Court, then certain rights are vested in the party in whose favour the suit is decided. Thus, the plaintiff is not entitled to withdraw the suit, as a matter of course at any time after the decree is passed by the trial Court. The judgment relied upon by the learned counsel for the respondent, Kamta v. Gaya Prasad, ( AIR 1972 All 143 ) was dissented subsequently by that Court in Kanhaiya's (supra). In paragraph 6 thereof, it was observed as under:- "A learned single Judge of this Court in Kedar Nath v. Chandra Kiran, AIR 1962 All 263 also took the view that Order XXIII. Rule 1 (1) does not give an absolute right to the plaintiff to withdraw the suit at the stage of second appeal and that the matter of withdrawal of the suit under the aforesaid provision of the Code lay within the discretion of the Court. Rule 1 (1) does not give an absolute right to the plaintiff to withdraw the suit at the stage of second appeal and that the matter of withdrawal of the suit under the aforesaid provision of the Code lay within the discretion of the Court. This case was cited with approval in the case of Vidyadhar Dubey, 1970 All LJ 732 (AIR 1971 All 4l) (supra). The observation of the learned single Judge in Kamta's case, 1971 All WR (HC) 667: ( AIR 1972 All 143 ) (supra) that the view taken in Kedarnath's case (supra) has been rendered nugatory due to the law laid down by the Supreme Court in the case of M/s. Hulas Rai, AIR 1968 SC 111 (supra) does not appear to be justified. The case of M/s. Hulas Rai had nothing to do with the right of an appellant to withdraw the suit at the appellate stage." Thus, keeping in view the facts and circumstances of the present case, the plaintiff could not be allowed to withdraw the suit at appellate stage. Consequently, the appeal succeeds. The order of the learned lower Appellate .Court allowing the plaintiff to withdraw his suit, is set aside and the case is sent back to the District Judge for deciding the appeal on merits in accordance with law.” 13. Learned Single Judge of Hon’ble Punjab and Haryana High Court in Gurnek Singh vs. Gurbachan Singh , AIR 1986 Punjab and Haryana 228 held as under:- “4. After hearing the learned counsel for the parties and going through the case law cited at the Bar I do not find any merit in this petition . In Jubedan Begum's case (supra) what was held by this court was that the plaintiff was not entitled to withdraw the suit, as a matter of course, at any time after the decree is passed by the trial Court. In other words, it means that a very strong case has to be made out for allowing the suit to be withdrawn at the appellate stage. As a proposition of law it could not be disputed that in a given case the suit may be allowed to be withdrawn even at the appellate stage. No such case has been made out as regards the facts of the present case. As a proposition of law it could not be disputed that in a given case the suit may be allowed to be withdrawn even at the appellate stage. No such case has been made out as regards the facts of the present case. The suit was dismissed on merits and not on account of any formal defect in it in the present case. One of the issues in the suit was whether the suit was bad for a mere declaration. The trial Court found this issue against the plaintiff. During the trial the plaintiff never sought amendment of his plant so as to claim the relief of possession as well. In any case, the suit was ultimately dismissed on merits as it was held that the suit property was not the ancestral property of the plaintiff and defendants No. 1 as claimed in the plaint. In these circumstances no case has been made out by the plaintiff to withdraw the suit at the appellate stage. Consequently, the petition fails and is dismissed with costs.” 14. Their Lordships of the Hon’ble Supreme Court in K.S. Bhoopathy and others Vs. Kokila and others , AIR 2000 Supreme Court 2132 held that it is the duty of the Court to feel satisfied about existence of proper grounds/reasons for granting permission to withdraw the suit with leave to file fresh suit. Their Lordships held as under:- “12. The provision in Order XXIII, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII, Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII, Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of the cases.” 15 Learned Single Judge of this Court in Mangat Ram vs. Chura Dutt , AIR 2003 Himachal Pradesh 143, held that by permitting the plaintiffs to withdraw the suit, first appellate court has not only permitted the plaintiffs to avoid the decree passed against him by the trial court, has also made the defendant to lose the advantage of adjudication of the dispute in his favour. Learned Single Judge of this Court held as under:- “14. In the present case, the suit of the plaintiffs was dismissed on merits by the learned trial court by holding that no part of the land belonging to the plaintiffs had been encroached upon by the defendant. Therefore, the defendant had derived an advantage of the adjudication of the dispute by the learned trial Court. By permitting the plaintiffs to withdraw the suit, the learned first appellate Court has not only permitted the plaintiffs to avoid the decree passed against him by the learned trial Court, has also made the defendant to lose the advantage of adjudication of the dispute in his favour. 15. As pointed out above, the plaintiffs earlier had approached the learned first appellate Court under Order 26 Rule 9, Code of Civil Procedure, for appointment of a Local Commissioner to demarcate the land and to ascertain the extent of encroachment, if any, by the defendant. Such application was dismissed on 6.6.1998. By permitting the plaintiffs to withdraw the suit with liberty to bring a fresh suit on the same cause of action "after obtaining proper demarcation of the land in dispute" the learned first appellate Court has proceeded to set aside its own order, which it was not competent to do. 16. Such application was dismissed on 6.6.1998. By permitting the plaintiffs to withdraw the suit with liberty to bring a fresh suit on the same cause of action "after obtaining proper demarcation of the land in dispute" the learned first appellate Court has proceeded to set aside its own order, which it was not competent to do. 16. It was for the plaintiffs to frame their suit in any form as advised taking into consideration the nature of cause of action accruing to them. From the facts and circumstances of the case as emanating from the pleadings of the parties and the judgment of the learned trial Court as well as the impugned order of the learned first appellate Court, it is evident that the plaintiffs realised the weakness of their suit and in order to get over the findings against them recorded by the learned trial Court, they took recourse to Order 23 Rule 1(3), Code of Civil Procedure, for withdrawal of the suit with leave to file a fresh suit. Therefore, no leave could have been granted to the plaintiffs to withdraw the suit. The impugned order of the learned first appellate court is bad and cannot be sustained. 17. As a result the present petition is allowed. The impugned order dated 13.6.2000 of the learned first appellate court passed in Civil Appeal No. 2 of 1998 is set aside and the application made by the plaintiffs under Order 23 Rule 1(3), Code of Civil Procedure, is dismissed with costs, quantified at Rs.2, 200.” 16 The learned Single Judge in Somalraju Vs. Samanthu Sivaji Ganesh & Anr ., AIR 2009 Andhra Pradesh 12 held that expression ‘formal defect’ connotes defects of various kinds. The learned Single Judge held as under:- “8. The expression ‘Formal Defect’ in the normal parlance connotes defects of various kinds not affecting the merits of the case. Thus, a formal defect is ‘a defect of form’ unrelated to the claim of the plaintiff on merits.” 19. Thus according to him, the application being a gross abuse to the process of the court ought to have been dismissed after taking into consideration the aforesaid facts and circumstances and the law on the subject. 20. Thus, a formal defect is ‘a defect of form’ unrelated to the claim of the plaintiff on merits.” 19. Thus according to him, the application being a gross abuse to the process of the court ought to have been dismissed after taking into consideration the aforesaid facts and circumstances and the law on the subject. 20. On the other hand, the learned counsel for respondent No. 1 has argued that once it was noticed that there was a formal defect then the court below has not committed any illegality or irregularity in permitting the suit to be withdrawn even if the same was at the arguments stage. Even the fact that defect in the plaint had been brought to the notice of the plaintiff at the earliest given opportunity when the written statement was filed would be of no avail since the material defect would continue to remain as a material defect in spite of the time lag. He further contended that merely because the respondent had still persisted to continue with the suit cannot be taken to be an adverse circumstance against the plaintiff-respondent since the principles of estoppel were not attracted to the present case. According to the learned counsel for the respondent, the learned court below has exercised the jurisdiction vested in it within the four corners of the law and accordingly prayed for dismissal of the application. 21. The only kind of defect which attracts the applicability of Order 23, Rule 1(3) CPC is formal defect. The formal defect is a defect of form described by a rule or procedure or in other words a defect which cannot be cured by an amendment. The formal defect connotes defects of various kinds not affecting the merits of the case. In Debashis Singha Roy & Ors. vs. Tarapada Roy & Ors. 2001 (2) CCC 30 (Cal.), the Calcutta High Court has held that non-joinder of parties and non-description of suit land is not a formal defect. 22. A suit cannot be allowed to be withdrawn for a defect of substance. (See: Ramrao Bhagwantrao Inamdar and another vs. Babu Appanna Samage and others AIR 1940 Bombay 121 (FB). 2001 (2) CCC 30 (Cal.), the Calcutta High Court has held that non-joinder of parties and non-description of suit land is not a formal defect. 22. A suit cannot be allowed to be withdrawn for a defect of substance. (See: Ramrao Bhagwantrao Inamdar and another vs. Babu Appanna Samage and others AIR 1940 Bombay 121 (FB). The court cannot be oblivious to the fact that no litigant can be allowed to file suit one after another on the same cause of action only for the purpose of keeping alive the dispute between the parties to be reopened at the discretion of the plaintiff. This would not only causes harassment to the parties against whom it is filed, but it is unnecessary impart on the public exchequer and unnecessary load on the court time. The grant of leave envisaged in sub-rule (3) of rule -1 of Order 23 CPC is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection because this provision is founded on public policy. 23. It is settled law that permission to withdraw the suit with liberty to file a fresh suit cannot be granted mechanically and the court is duty bound to satisfy itself that there exist proper grounds for granting such permission. Such permission cannot be resorted to when the claim set out in the original suit is weak. The Hon’ble Supreme in K.S. Bhoopathy and others vs. Kokila and others (2000) 5 SCC 458 has held as follows:- “13. The provision in Order XXIII, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII, Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII, Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of the cases. 17. From the above it appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the trial Court and the first appellate Court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate Court they took recourse of Order XXIII, Rule 1(3), C.P.C. and filed the application for withdrawal of the suit with leave to file fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. Its approach appears to have been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at appellate or second appellate stage prejudice to defendant is writ large as he loses the benefit of the decision in his favour in the lower Court.” 24. A mere statement by the plaintiff that there is a formal defect in the plaint and form in the suit is not enough. As already observed earlier, a formal defect is a defect of form unrelated to the case of the plaintiff on merits and is required to be spelt out specifically in the application seeking permission to withdraw the suit. In the present case the plaintiff has sought withdrawal of the suit by putting forth the following reasons: - “2. That at the time of filing the suit the tatima of the encroached portion was not filed of the suit land despite the efforts made by the applicant/plaintiff and the defendant/respondent was executing the construction work on war footing. 3 That the patwari concerned did not supply the tatima of the encroached portion of the suit land, thus there is a formal defect in the suit, even in case the suit is decreed, the said decree is not executable for want of the exact portion of the encroachment of the suit land, thus there are sufficient ground to withdraw the suit with a liberty to file the present suit on the same cause of action.” 25. It is pertinent to note here that when the suit had been filed by the plaintiff, he had made the following averments in para-1 of the plaint:- “1. It is pertinent to note here that when the suit had been filed by the plaintiff, he had made the following averments in para-1 of the plaint:- “1. That the plaintiff is recorded owner alongwith others co-owners of the land comprised in khata khatauni ½ mins khasra No.152 land measuring 310-70 meters situated in mauza upmuhal kasba Bazar, Rampur Bushahr, Tehsil Rampur Bsr, District Shimla (HP). The possession of the land has been exclusively in the name of plaintiff as per the Jamabandi for the year 1998-99 annexed with the plaint. The Aks tatima of the land is also annexed with the plaint for the kind perusal of the Hon’ble Court.” 26. However, despite making a mention of the fact that the aks-tatima of the land had been annexed with the plaint, in fact no copy of aks-tatima had been filed. In the written statement filed by the defendants the point regarding non-annexing of tatima in order to show the alleged encroachment was duly brought to the notice of the plaintiff not only in para-1 of the preliminary submissions but even in paras No. 4 and 7 on merits, which reads as under:- “1. That the suit as framed is not competent and maintainable for the reason that no Tatima showing the alleged encroachment has been filed with the suit. The suit thus is liable to be dismissed for this reason alone.” 4. Para 4 of the plaint is absolutely false therefore emphatically denied. The defendants started the construction much prior to 27.8.2003 by demolishing the old structure. It is absolutely false that any encroachment on Khasra No.152 was made by the defendants as alleged. It is absolutely false that the defendants have raised the construction over Khasra No.152 as alleged. Whatever construction the defendants are raising is within Khasra No.147 and not an inch of Khasra No.152 has been covered in the said construction, rather the defendants have constructed the building leaving about more than one meter land of Khasra No.147. The contention of the plaintiff that the defendants have raised the projection 4 feet in width and 35 feet in length on Khasra No.152 is a blatant lie and a pure concoction and the falsity of the fact is writ large by not filing of the Tatima depicting the spot position by the plaintiff. 7. The contention of the plaintiff that the defendants have raised the projection 4 feet in width and 35 feet in length on Khasra No.152 is a blatant lie and a pure concoction and the falsity of the fact is writ large by not filing of the Tatima depicting the spot position by the plaintiff. 7. Para 7 of the plaint is again a blatant lie therefore emphatically denied in the light of the submissions made in the earlier paras. As the defendants are raising the construction absolutely on Khasra No. 147 there arose no occasion to the plaintiff to request the defendants not to raise any construction on Khasra No. 152 as alleged. Factually the plaintiff is beating about the bush and it was for this reason that he is not filing the Tatima which could reveal the factual position and could depict the encroachment if any. The plaintiff is basing his suit purely on conjectures and surmises and on hypothecated apprehensions. It is absolutely false that any threats were ever given to the plaintiff as alleged.” 27. The plaintiff has made the following averments in the replication to counter the claim of the defendants: “1. That para 1 of the P.O. is wrong therefore denied. The suit is maintainable as the defendants have no right and title to encroach the land of the plaintiff. 4. That para-4 of the W.S. is wrong, therefore, denied emphatically. The construction of the building has been started construction on 27.8.2003 over the suit land and encroached over Kh. No. 152. The construction which is still in progress despite the injunction order issued by the Hon’ble court is in progress and the projection of slabs has been laid over Kh. No. 152 and the R.C.C. pillars have been raised over the suit land by the defendants without having any right, title and interest over the land of the plaintiff. Para 4 of the plaint is re-affirmed. 7. That para-7 of the W.S. is wrong therefore denied. The defendants are raising construction over kh. No. 147 and also over Kh. No. 152 owned and possessed by the plaintiff illegally without any right and title over Kh. No. 152. The plaintiff has applied for the correction of settlement map and revenue record before the Collector, Shimla and the same is pending for adjudication. The defendants are raising construction over kh. No. 147 and also over Kh. No. 152 owned and possessed by the plaintiff illegally without any right and title over Kh. No. 152. The plaintiff has applied for the correction of settlement map and revenue record before the Collector, Shimla and the same is pending for adjudication. The moment the correction is ordered to be carried out in the settlement record the same shall be filed in the court. Para 7 of the plaint is re-affirmed.” 28. Thus, what would be seen from the pleadings of the parties was that plaintiff despite being put to caveat regarding non-annexing the Tatima yet persisted and chose to continue with the suit. Not only this, the plaintiff during the course of the proceedings, filed an application for appointment of Local Commissioner, wherein it was alleged as follows:- “That the applicant/ plaintiff has applied for the correction of revenue entries/ aks shajra that had been wrongly prepared by the settlement staff during the recent settlement at the instance of the respondent/ defendant. The matter is still subjudice as the applicant/ plaintiff could not file annex the tatima with the plaint at the time of filing the suit.” However, the said application came to be dismissed by the learned trial court vide detailed order passed on 8.11.2004 on the ground that plaintiff himself had challenged the revenue records prepared during settlement and accordingly it was held that no useful purpose would be served. 29. From what has been noticed above is that the plaintiff without any factual foundation and basis in fact had chosen to file the suit against the defendants and prolonged it on one pretext or the others so as to enable him to gather evidence in the meanwhile so that he could fill in the lacunaes of his case. Unfortunately, despite the pendency of the suit the plaintiff could not succeed and ultimately when the matter was listed for final arguments, he left with no other option had filed this application for withdrawal of the suit pending therein on the ground that there was formal defect. In such circumstances, the very conduct of the plaintiff disentitles him to claim withdrawal of the suit particularly when he has wasted the precious time of the court. 30. In such circumstances, the very conduct of the plaintiff disentitles him to claim withdrawal of the suit particularly when he has wasted the precious time of the court. 30. Moreover, even on merits, the defect is not one of the form or procedure, cannot be termed as formal defect so as to entitle the plaintiff to grant liberty in terms of Order 23 Rule 1(3) CPC. In case, the plaintiff just wanted to place on record the Tatima on record, then he could have done so by filing an appropriate application for having placed the same on record, since it already finds mentioned in para-1 of the plaint. Otherwise also, as per the case set up by the plaintiff himself, he has already approached the revenue authorities for correction of the records. Therefore, in case the revenue authorities holds in favour of the plaintiff, nothing prevents him from filing the suit particularly with regard to prohibitory injunction. 31. In so far as the mandatory injunction is concerned, the petitioner under the garb of collecting evidence cannot be permitted to resort to such tactics as it would defeat the ends of justice and this would be contrary to the basic concept of fair play. Accordingly, the present petition is allowed and order dated 21.2.2005 passed by the learned Civil Jude (Senior Division), Rampur Bushahr, District Shimla in case No. 84-1/2003 is ordered to be set-aside. Parties to appear before the learned trial court on 16.6.2014.