G.M. Lodha, J.
1. This is a revision petition by the defendant against them the suit has been dismissed, but as withdrawn with permission to file a fresh suit.
2. The two grounds on which the withdrawal was claimed related to non-joinder of the party and also the absence of relief regarding specific performance of contract.
3. Mr. R.C. Kasliwal, the learned Counsel for the petitioners has submitted that firstly, both these defects are not sufficient to permit the withdrawal of suit with permission to file a fresh one. Secondly, in any case, the court is required to record the satisfaction which has not been done in the present case.
4. Mr. Kasliwal, then submitted that these defects can be considered in revision in view of the decision in A.I.R. 1940 Bombay 121 Damrao Bhagwantrao Inamdar and Ors. v. Babu Appanna Bemage and Ors. He also submitted that the law is well settled and the non-joinder of a party is not a formal defect. Various decisions have been cited in support of the above contention.
5. In this particular case, my attention was invited by Mr. Kasliwal the decisions in the Asian Assurance Co. Ltd. v. Madholal Sindhu and Ors. : AIR1950Bom378 and Ttinath Parida v. Sobha Bholaini and Ors. : AIR1973Ori37 . He also invited my attention to the case of Dalipsingh v. Rajinder singh and Ors. in which it has been held that the statement of the plaintiff is not sufficient as the court must be satisfied that there is a formal defect in the form of the suit.
6. My attention was also invited to Fairs aid Ors. v. Ganesh Dass and Ors. AIR 1967 Punjab and Haryana 217 in which it has been held that if the defects are on account of the plaintiff then permission should not be granted.
7. Relying on : AIR1956Bom632 Tarachand Bapuchand v. Galbihaji Ahmed Bhagwan. Mr. Jain, learned Counsel for the respondent has contested the revision petition. He placed reliance on the decision in M.I. Sethi v. N.P. Kanur : 1SCR697 in which the scope of Section 115 has been discussed.
8. I have carefully considered the submission of learned Counsel for both the parties and have also given a thoughtful consideration to the principles laid down in the above decisions.
9. Order XXIII Rule 1, Sub-clause (3) reads as under:
(1) Withdrawal of suit or abandonment of part of claim:
(3) Where the court is satisfied:
(a) That a suit must fail by reason of some formal defects, 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 on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suitor 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.
10. Assuring that the defects of non-joinder of parties is not a formal defect as argued by Mr. Kasliwal. Without expressing any opinion about the correctness of this principles. I am convinced that the absence of the prayer for specific performance is a defect of formal nature.
11. It is true, that unless the court trying that case is satisfied that either of the conditions mentioned in the above clause is satisfied, no permission should be granted. However, this Court is required to examine the substance of the matter and it is immaterial in what form the satisfaction is recorded by the trial court. On a perusal of the order of trial court I am convinced that trial court was satisfied in the facts and circumstances, of the case, that permission for filing a fresh suit should be granted. Two defects have also been noticed, in the earlier part of the judgment. That being so, though the order may not be very detailed and comprehensive, as rightly pointed out by Mr. Kasliwal, yet substantial justice has been done.
12. I am further of the opinion that tie very use of the words 'formal defects' in Order 23 Rule Sub-clause (3)(a) presuppose that there is some lapse in draft of the plaint on account of which the suit must fail. It is true, that whether lapse or mistake is bonafide or malafide, van be gone into, but from that we cannot jump to the conclusion that in case, defects are due to plaintiff's fault, permission cannot be granted. Even in the judgment relied upon by Mr. Kasliwal, of Paira and Ors. v. Ganesh Das and Ors. the court has observed that error made in good faith by the plaintiff is sufficient for invoking Order 23 Rule 1, CPC.
13. In view of the above, I am convinced that neither there would be any failure of justice nor any irreparable loss as contemplated by exception to proviso of the Section 115 CPC of the impugned order is allowed to stand. Consequently, the revision is dismissed without any order as to costs.