ORDER 1. In this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 30.4.2014 passed by the Civil Judge, Class II, Seondha District Datia (M.P.) in Civil Suit No.61-A/2012 whereby the application under Order 23 rule 1 CPC has been dismissed seeking leave of this Court to withdraw the suit with liberty to file afresh. 2. The facts in nutshell are that the petitioner-plaintiffs filed a suit for declaration and permanent injunction. Since there was defect of non-joinder of necessary party and due to lack of certain pleadings, the petitioner moved an application under Order 23 rule 1 CPC. The learned trial Court dismissed the application on the ground that defect of non-joinder of party is not a formal defect and lack of pleading cannot be a ground for granting the permission to withdraw the suit with the liberty to file fresh suit. 3. The learned counsel for the petitioner submitted that the trial Court without considering the relevant provisions contained in Order 23 rule 1 CPC has rejected the application which is dehors the provisions of law. 4. Order XXIII rule 1 CPC makes provisions for withdrawal of the suit. Sub-rule (3) of rule 1 of Order XIII being relevant is reproduced below: “1.Withdrawal of suit or abandonment of part of claim. -- (1) xxxx (2) xxx xxx xxx xxx (3) where the Court is satisfied : (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, or such terms of it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” 5. A bare reading of the aforesaid provision would show that the plaintiffs may, in the circumstances mentioned in sub-rule (3), be permitted by the Court to withdraw a suit with liberty to sue a fresh on the same cause of action. The legislative policy, as pointed out by the apex Court in the case of K.S. Bhoopath v. Kokila [ AIR 2000 SC 2132 ], in the matter of exercise of discretion is clear. The legislative policy, as pointed out by the apex Court in the case of K.S. Bhoopath v. Kokila [ AIR 2000 SC 2132 ], in the matter of exercise of discretion is clear. The relevant passage is reproduced below : “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 afresh 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) CPC 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) CPC 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.” 6. In view of the above provisions Shri Pratip Visoria, the learned counsel for the petitioner argued that the learned trial Court erred in rejecting the application in as much as in view of the above legal provisions there is a formal defect in the suit due to non-joinder of party, the plaintiff has a right to withdraw the suit and, therefore, the order passed by the Court below rejecting the application is not proper and as such this Court is required to interfere in the matter under Article 227 of the Constitution of India. 7. On the other hand, the learned counsel for the respondent Shri R.K. Soni vehemently opposed the prayer of the petitioner and invited the attention of this Court to the principles laid down by the Orissa High Court in the case of Khatuna and another v. Ramsewak Kashinath and another [AIR 1986 Orissa 1], to emphasise that non-joinder of necessary party in a suit is not a formal defect, the defect strikes at the root of the suit in any stage and the provisions of Order 23, rule 1(3) is not attracted. He has placed further reliance in support of a judgment of Himachal Pradesh High Court in the case of Smt. Savitri Devi v. Hiralal [ AIR 1977 HP 91 ], wherein also similar principles are laid down. Apart from inviting my attention to judgment of this Court in the case of Umadevi and another v. Nagarpalika, reported in 1999(2) MPJR 487 , Shri Soni argued that permission to withdraw the suit cannot be granted as a matter of right, it can be granted only if sufficient and good reason for withdrawal of suit is made out. Apart from inviting my attention to judgment of this Court in the case of Umadevi and another v. Nagarpalika, reported in 1999(2) MPJR 487 , Shri Soni argued that permission to withdraw the suit cannot be granted as a matter of right, it can be granted only if sufficient and good reason for withdrawal of suit is made out. Accordingly, he submits that the order passed by the trial Court is absolutely in accordance with the provisions of law and as such does require any interference in the matter. 8. Shri Soni has further pointed out that the trial Court had earlier rejected the application under Order 23 rule 1 CPC vide order dated 11.4.2014 on the ground that the application has been filed by only one plaintiff and for the reason that the evidence of the plaintiffs have already been closed and as such the petitioner-plaintiff is free to amend the petition if so desires. It is further submitted that in light of dismissal of the first application, the present second application even though it is filed by all the plaintiffs under Order 23 rule 1 is not maintainable. 9. I have heard the learned counsel for the parties at length and perused the record. 10. Order 23 of Civil Procedure Code deals with withdrawal of a suit or abandonment of part of claim. Under sub-rule (3) of rule 1, the plaintiff can be granted permission at any time after institution of suit either to withdraw the suit or to abandon any or part of the claim and the said permission under sub-rule (3) of rule 1, the plaintiff can be granted permission at any time after institution of suit either to withdraw the suit or to abandon any or part of the claim and the said permission under sub-rule (3) can be granted when the Court is satisfied that the suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or part of a claim. 11. The question as to whether non-joinder of party in a suit is a formal defect as contemplated under sub-rule (3) of rule 1 of Order 23, Civil Procedure Code has been considered in the case of Khatuna and another (supra), by the Orissa High Court. 11. The question as to whether non-joinder of party in a suit is a formal defect as contemplated under sub-rule (3) of rule 1 of Order 23, Civil Procedure Code has been considered in the case of Khatuna and another (supra), by the Orissa High Court. It has been held by the Orissa High Court in the aforesaid case that non-joinder of necessary party in a suit is not a formal defect. It is held that such a defect strikes at the root of the suit and in such case provisions of Order 23, rule 1 is not attracted. Before arriving such a conclusion, the Orissa High Court has placed reliance on a Division Bench’s judgment of the Calcutta High Court in the case of Haridas Sadhu Khan v. Giridhari Sadhu Khan [AIR 1934 Cal. 59], wherein it has been held by the Calcutta High Court that the defect to the effect in a suit that certain necessary party was not impleaded is not a formal defect. It is seen that similar view was expressed in the case of Ram Padarth Misir v. Data Din Misir [AIR 1941 Oudh 417] and by the Allahabad High Court in the case of Muktanath Tiwari v. Vidyashanker Dube [AIR 1943 Allahabad 67]. In the case of Asian Assurance Co. Ltd. v. Madholal Sindhu [AIR 1950 Bombay 378], Chief Justice Chagla who wrote the judgment on behalf of Division Bench has also held that non-joinder of some of the parties in the suit is not a formal defect as contemplated under Order 23, rule 1, Civil Procedure Code thereafter again Bombay High Court in the case of Tarachand Bapuchand v. Gaibihaji Ahamed Bagwan [AIR 1956 Bombay 632], has taken similar view and judgment in this case was rendered by Shri Gajendragadkar J. as he then was. It is seen that the judgments of the Bombay High Court were followed by the Orissa High Court in the case of Trinath Parida v. Sobha Bholaini [AIR 1973 Orissa 387], and it was held that non-joinder of necessary party is not a formal defect. It is seen that the judgments of the Bombay High Court were followed by the Orissa High Court in the case of Trinath Parida v. Sobha Bholaini [AIR 1973 Orissa 387], and it was held that non-joinder of necessary party is not a formal defect. The principle laid by the Himachal Pradesh High Court in the case of Savitri Devi (supra), was also taken note of in this case and it was held that principle laid down by the Bombay High Court in the case of Tarachand Bapuchand (supra), and the Oudh High Court in the case of Ram Padarath Misir (supra), are relied by the Himachal Pradesh High Court and the principles laid in all these judgments are that non-joinder of necessary party is not a formal defect but the defect which strikes at the root of the suit. 12. It is seen from the above judgments that a consistent view of most of the Courts is that non-joinder of the party is not a formal defect. It has been held that plaintiff is required to satisfy the Court and should show good ground for seeking permission to withdraw the suit and grant of liberty. It has been further held by this Court in the case of Uma Devi (supra), that a trial de novo is not to be lightly granted to plaintiff to enable to come prepared to fight a fresh legal battle. 13. Keeping in view the totality of the facts and circumstances of the case and the principle that emerges from a complete reading of the judgments as indicated herein-above and looking to the fact that second application on the same ground is not maintainable, the learned trial Court has not committed any apparent error which warrants interference under Article 227 of the Constitution of India. The learned trial Court has rightly arrived at the findings that the grounds contemplated for withdrawal of the suit under Order 23 rule 1(3) of the CPC are not made out by the plaintiffs in the present case. 14. Accordingly, finding no force in the contentions advanced by Shri Pratip Visoria, learned counsel for the petitioner, the petition is accordingly dismissed. No order as to costs.