JUDGMENT : Tarlok Singh Chauhan, J. The moot question to be answered in this petition is whether non-joinder of party can be said to be a formal defect within the meaning of Rule 1(3) of Order 23 of the Code of Civil Procedure (for short 'Code'), entitling the plaintiffs for withdrawal of the suit with permission of the Court to file a fresh suit on the same and similar cause of action 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. 2. The plaintiffs- respondents (hereinafter to be referred to as the 'plaintiffs') filed a suit for declaration with consequential relief of permanent prohibitory injunction on 01.07.2013. It is not in dispute that the defendants/petitioners (hereinafter to be referred to as the 'defendants') contested the suit by filing written statement, thereafter issues were framed on 19.11.2014 and it was after the parties had led their respective evidence that the plaintiffs then filed an application for withdrawal of the suit with permission to file a fresh suit on the same cause of action. 3. The necessity for filing such application was spelt out in para-2 of the application which reads thus:- "2. That during the pendency of the suit, it has come to the notice of the applicants/plaintiffs that some of the co-owners of suit land have been left out inadvertently, as the Patwari has not supplied the complete copies of revenue record, with respect to the suit land, which was divided into 7min Khasra numbers, on the basis of partition, which partition was set aside in revenue appeal. The predecessor-in-title of the present applicants/plaintiffs was co-owner in Khasra No. 14, which is subject-matter of the the present suit. The other co-owners, who could not be arrayed, as defendants inadvertently, are namely Sh. Geeta Ram S/o Sh. Jiwanu, Smt. Neelam W/o Sh. Chetan, Sh. Kishori Lal S/o Sh. Sulekh Chand, Sh. Ram Sawroop S/o Sh. Datta Ram, Sh. Raj Kumar S/o Sh. Prem Chand, Smt. Amarjeet Kaur W/o Sh. Prem Chand, Smt. Neelam W/o Sh. Kunj Bihari, Smt. Gurmeet Kaur D/o Sh. Nirmal Singh and Smt. Neenu W/o Sh. Shiv Charan. The aforesaid coowners are necessary party to be impleaded and in their absence, there cannot be proper and complete adjudication of this case. Datta Ram, Sh. Raj Kumar S/o Sh. Prem Chand, Smt. Amarjeet Kaur W/o Sh. Prem Chand, Smt. Neelam W/o Sh. Kunj Bihari, Smt. Gurmeet Kaur D/o Sh. Nirmal Singh and Smt. Neenu W/o Sh. Shiv Charan. The aforesaid coowners are necessary party to be impleaded and in their absence, there cannot be proper and complete adjudication of this case. This is the formal defect, in this civil suit, which goes to the root of controversy involved." 4. Evidently, the only ground taken by the plaintiffs for filing the application is that they were unaware of the other co-owners, who are the necessary parties, because the Patwari had not supplied the complete copies of the revenue record with respect to the suit land. Evidently, this statement is false to the knowledge of the plaintiffs themselves because in the written statement, the defendants had put the plaintiffs to caveat that they were co-owners of the land, as is evident from para-5 of the preliminary objections as well as para-5 of reply on merits to the plaint which read thus:- "5. That the replying defendant is bonafide purchaser for consideration and absolute owner in possession of land measuring 0-3 biswas, out of the land presently bearing khasra No. 614/14 and 615/14, situated in the area of village Rakh Ram Singh, Tehsil Nalagarh (HP), which has been purchased by the replying defendant vide sale deed No. 1428/2011 dt. 31.12.2011 from its previous owner Sh. Gita Ram son of Sh. Jiwanu Ram, after proper verification of title of the previous owner Sh. Gita Ram and on the basis of said sale deed mutation No. 1572 dt. 28.1.2012 has been sanctioned in his favour in the revenue record and since then the replying defendant is owner in possession of the said land and is having every right to use and enjoy with its possession, as per his wish and the plaintiffs have got no legal right to seek injunction qua user of said land by the replying defendant by filing this false and frivolous suit and also by concealing the true facts from this Hon'ble Court." ON MERITS:- 5. This para of the plaint is wrong and denied. It is incorrect that replying defendant has started threatening to raise construction over the specific portion of the suit land, as alleged. This para of the plaint is wrong and denied. It is incorrect that replying defendant has started threatening to raise construction over the specific portion of the suit land, as alleged. It is incorrect that the revenue record showing the suit land as separate is not legal and correct, as alleged. It is incorrect that the replying defendant has claimed title over the specific portion of suit land on the basis of mutation No.560 dt. 30.5.2002, as alleged. In fact, replying defendant is bonafide purchaser for consideration and absolute owner in possession of land measuring 0-3 biswas, out of the land presently bearing Khasra No. 614/14 and 615/14, situated in the area of village Rakh Ram Singh, Tehsil Nalagarh (HP), which has been purchased by the replying defendant vide sale deed No. 1428/2011 dt. 31.12.2011 from its previous owner Sh. Gita Ram son of Sh. Jiwanu Ram, after proper verification of title of the previous owner Sh. Gita Ram and on the basis of said sale deed mutation No. 1572 dt. 28.1.2012 has been sanctioned in his favour in the revenue record and since then the replying defendant is owner in possession of the said land and is having every right to use and enjoy with its possession, as per his wish and the plaintiffs have got no legal right to seek injunction qua user of said land by the replying defendant by filing this false and frivolous suit and also by concealing the true facts from this Hon'ble Court. Rest of averments of this para of plaint are wrong and denied." 5. Notably, this written statement was filed on 15.11.2013, whereas, the present application for withdrawal of the suit came to be filed after a lapse of nearly 4 1/2 years on 15.05.2018. 6. According to the plaintiffs, the co-owners are the necessary parties to be impleaded and in their absence, there cannot be complete and proper adjudication of this case. It is further averred that "this is the formal defect in this suit which goes to the root of controversy involved". 7. This Court in Smt. Savitri Devi versus Hira Lal, (1977) AIR H.P. 91 has held that the omission to implead a necessary party is not a formal defect, it is a material defect, as is evident from para-3 of the judgment which reads thus:- "3. 7. This Court in Smt. Savitri Devi versus Hira Lal, (1977) AIR H.P. 91 has held that the omission to implead a necessary party is not a formal defect, it is a material defect, as is evident from para-3 of the judgment which reads thus:- "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, (1956) AIR Bombay 632 and Ram Padarath v. Data Din, 1941 AIR(Oudh) 417. There is force in the contention. The omission to implead a necessary party cannot be described a formal defect. It is a 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." 8. In Pankaj Soni versus Inder Singh Chandel, CMPMO No.52 of 2012, decided on 25.10.2013, this Court while dealing with the scope of Order 23 Rule 1(3) CPC and also relying upon the judgment of this Court in Savitri Devi's case (supra) and another judgment of this Court in Mangat Ram versus Chura Dutt, (2003) AIR H.P. 143 observed as under:- "6......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, (1982) AIR 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. 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 Bani Ram and Ors. vs. Gain and Ors., (1982) AIR 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, (1950) AIR 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. 7. Division Bench of Bombay High Court in Asian Assurance Co. Ltd. vs. Madholala Sindhu, (1950) AIR 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. 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. 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, (1971) AIR 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. 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 subsequent 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. 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. 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 withdraw 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. 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, (1972) AIR 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) GLR 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, (1956) AIR Bombay 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. 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, (1973) AIR 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 Asian Assurance Co. Ltd. v. Madholal Sindhu, (1950) AIR Bombay 378 and Tarachand Bapuchand v. G.A. Bagwan, (1956) AIR Bombay 632). 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, (1977) AIR H.P. 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. 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, (1956) AIR Bombay 632 and Ram Padarath V. Data Din, 1941 AIR(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. Learned Single Judge of Punjab and Haryana High Court in Jubedan Begum vs. Sekhawat Ali Khan, (1984) AIR(P&H) 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. 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, (1972) AIR Allahabad 143 was dissented subsequently by that Court in Kanhaiya's. In paragraph 6 thereof, it was observed as under:- "A learned single Judge of this Court in Kedar Nath v. Chandra Kiran, (1961) AIR Allahabad 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. This case was cited with approval in the case of Vidyadhar Dubey, (1971) AIR Allahabad 41 : 1970 AllLJ 732 (supra). The observation of the learned single Judge in Kamtas case, (1972) AIR Allahabad 143 : 1971 AllWR (HC) 667 (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, (1968) AIR SC 111 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, (1986) AIR(P&H) 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. Learned Single Judge of Hon'ble Punjab and Haryana High Court in Gurnek Singh vs. Gurbachan Singh, (1986) AIR(P&H) 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 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. 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, (2000) AIR SC 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). 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. 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. 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. 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, (2003) AIR H.P. 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. 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. The learned Single Judge in Somalraju Vs. Samanthu Sivaji Ganesh & Anr., (2009) AIR A.P. 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." 9. 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." 9. The scope of Order 23 Rule 1(3) CPC was considered by me in Nand Kumar versus Gajinder Singh & Ors., 2014 LatestHLJ 559 (HP) and it was observed as under:- "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, (1977) AIR H.P. 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 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, (1956) AIR Bombay 632 and Ram Padarath v. Data Din, 1941 AIR(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. 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 CivCC 545 , 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 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, (1961) AIR(P&H) 421. 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, (1961) AIR(P&H) 421. It was submitted that if the plaintiffs had not attached site plan with the plaint showing the portion alleged to have been encroached 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 PunLR 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. 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 CivCC 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. 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 (1) RCR(Civ) 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 ShimLC 122 , wherein it has been held as follows:- "14. He has placed reliance on the judgement of this court in Mangat Ram vs. Chura Dutt and another, (2003) 2 ShimLC 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. 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. 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 CivCC 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 CivCC 44 (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. 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 application moved by the plaintiffs in the lower appellate court has been rightly dismissed by the said Court." 10. Based on the aforesaid judgments, this Court concluded as under:- "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 CivCC 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, (1940) AIR 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. 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. 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 afresh 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. 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. 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. 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." 11. Taking into account the aforesaid conspectus of law, it can conveniently be held that the mere statement by the plaintiffs that there is a formal defect in the plaint and form of the suit is not sufficient. 12. Taking into account the aforesaid conspectus of law, it can conveniently be held that the mere statement by the plaintiffs that there is a formal defect in the plaint and form of the suit is not sufficient. 12. To be fair to the learned counsel for the plaintiffs, he has relied upon the following judgments :- (i) Abdul Ghafoor versus Abdul Rahman, (1951) AIR Allahabad 845; (ii) Duryodhan Jena versus Satyabadi Samal and others, (1986) AIR Orissa 58; (iii) Daulat Ram versus Smt. Janki Devi and others, (1995) 1 ShimLC 132 (iv) K.S. Bhoopathy and others versus Kokila and others, (2000) AIR SC 2132. 13. In Abdul Ghafoor versus Abdul Rahman, (1951) AIR Allahabad 845, it was held that under Order 23 Rule 1 (2) (b), the Court can for other sufficient grounds permit the withdrawal of the suit as these grounds are not analogous to those mentioned in Rule 1(2) (a) and it was further laid down that if the Court purports to exercise discretion under Clause (b), but the grounds are not analogous to the defects referred to in Clause (a), the decision even though judicial can be interfered with under Section 115 of the Code. 14. In Daulat Ram versus Smt. Janki Devi and others, (1995) 1 ShimLC 132 , learned Single Judge of this Court after placing reliance upon the judgment of the Gauhati High Court in Union of India and another versus Monoranjan Banik, (1976) AIR Gauhati 1 held that other sufficient grounds can be independent of formal defects and defects analogous to them. Further, it was held that moreover the grounds in sub-rule (3) (a) require that the suit must fail by reason of some formal defect, whereas, sufficient grounds contemplated in sub-rule (3) (b) need not necessarily be fatal to the suit. 15. As regards K.S. Bhoopathy's case (supra), the same has already been considered by me in Nand Kumar's case (supra). 16. There can be no quarrel with the propositions as laid down in the judgments (supra). However, it would be noticed that the plaintiffs themselves had not invoked the provisions of Order 23 Rule 1 (3) (b), but their case has specifically been set out under Order 23 Rule 1(3) (a), as would be evident from para-2 of the application, the relevant portion whereof has been extracted and underlined as above. 17. However, it would be noticed that the plaintiffs themselves had not invoked the provisions of Order 23 Rule 1 (3) (b), but their case has specifically been set out under Order 23 Rule 1(3) (a), as would be evident from para-2 of the application, the relevant portion whereof has been extracted and underlined as above. 17. It is nowhere the pleaded case of the plaintiffs that there are sufficient grounds for allowing the plaintiffs to institute a fresh suit for the subject-matter of the suit or a part of the claim so as to invoke the provisions of Order 23 Rule 1(3) (b). Even otherwise, the learned counsel for the plaintiffs has not been able to show any sufficient ground whereby the plaintiffs can be allowed to institute a fresh suit for the subject matter of the suit or a part of the claim, as is evident from para-2 of the application (supra). 18. In view of the aforesaid discussion, this Court has no hesitation in concluding that the impugned order dated 30.07.2018 passed by the learned trial Court is not only perverse, but even the factual and legal aspects, more particularly, the provisions of Order 23 Rule 1(3) (a) and (b) have been totally misconstrued and misinterpreted. 19. Consequently, I find merit in this petition and the same is accordingly allowed and the impugned order passed by the learned trial Court on 30.07.2018 is set aside, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.