Bind Bansi Prasad, J.
1. This judgment will govern the second appeal No. 2608 of 1946 also. The two suits were brought by the same plaintiffs against two different sets of defendants for the recovery of ground rent. The plaintiffs are the zemindars of mohalla Illahi Bagh in the city of Garakhpur and the defendants in the two suits are residents of the same mohalla. In both the suits it was pleaded that there is a custom in the mohalla according to which the rayyats are liable to pay ground rent to the zemindars. In Suit No. 506 of 1944, from which second appeal No. 2315 of 1946 arises, it was alleged that the defendants had been paying ground rent at eight, annas per annum. In the other suit it was alleged that the defendants had been paying the ground rent at the rate of ten annas per annum. On these allegations Re. 1-8-0 for the ground rent for three years was claimed in one suit and
Re. 1-14-0 in the other. Both the Courts below have dismissed the two suits. The plaintiffs come up in appeal,
2. The claim was based upon an entry in the wajib-ul-arz of 1860 which runs as follows :
'The custom of mohalladari is that those belonging to the low caste (qaum-i-razil) ordinarily pay four annas per annum as ground rent but some of them pay more than this in accordance with the cabuliat.'
Although no contract was specifically pleaded in the plaint of the two suits, it follows from the above entry in the wajib-ul-arz that the plaintiffs claimed ground rent at a higher rate on the basis of the cabuliat. No cabuliat was, however, produced and the claim based upon oabuliat was not supported by any evidence at all. For this reason, in the lower appellate Court, it was pleaded that the plaintiffs should be allowed at least a ground rent at the rate of four annas per annum. The plaintiffs were, however, faced with a difficulty. It was not pleaded in the plaint that the defendants belonged to low caste (qaum-i-razil), and no evidence whatsoever was given to prove that they belonged to qaum-i-razil. So, even if the custom, as recorded in the wajib-ul arz, be admitted to exist, it is not established that it is applicable to the defendants, because there is no evidence that they belonged to, what is called, 'low caste'. The two suits were rightly decided by the Courts below.
3. Learned counsel requested at the end of his argument to be allowed to withdraw from the suit with liberty to bring a fresh suit on the same cause of action. Order 23, Rule 1 (2), Civil P. C. provides : 'Where the Court is satisfied --
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other 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, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.'
There is no formal defect in the suit. The expression 'formal defect' connotes defects of various kinds not affecting the merits of the case. A defect which goes to the root of the plaintiffs' claim is not a formal defect. Defects such as omission to obtain permission if necessary, of the necessary authority before bringing the suit, misjoinder of parties or causes of action or erroneous valuation of the subject-matter of the suit or the institution of the suit in a Court which has no jurisdiction to entertain the suit, are defects of a formal nature. But where the suit has failed because the plaintiff failed to produce evidence which he was bound to produce in support of his claim, he cannot be permitted to withdraw the claim with liberty to bring a fresh suit in respect of the same subject-matter.
4. It is further to be noted that this request is being made at a very late stage and there is no reason why the defendant should be harassed by another litigation. I see no good ground to grant the permission.
5. Both the appeals fail and they are hereby dismissed with costs.