CHARAN SINGH KUSHWAHA Vs. SMT. GOMATI BAI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed challenging the order Annexure P/1 dated 1.8.2015 passed by 3rd Civil Judge Class-I, Gwalior in Civil Suit No.3A/2014 allowing the application under Order 23 Rule 1(3) of the Code of Civil Procedure (hereinafter shall be referred to as ''C.P.C'') and permitting the plaintiffs (respondent Nos.1 to 5 herein) to withdraw the suit on the ground that there was a defect of non-joinder of the parties, improper valuation and on account of not asking the relief of possession, the suit may result into failure granting the liberty to file a fresh suit.

(2.) Learned counsel for the petitioner has strenuously urged that merely non-joinder of the parties cannot be termed to be a formal defect in view of the judgment of this Court rendered in the case of Raghuraj & Others Versus RamPrakash & Others reported in 2016 (1) MPJR 50. In support of the said contention, reliance has also been placed on the judgment of this Court rendered in the case of Vinod Kumar Gupta Versus Smt.Ramadevi Shivhare & Another reported in 2008 (1) M.P.H.T 83.

(3.) It is also contended by learned counsel for the petitioner that in case the plaintiffs have lost the possession during pendency of the proceeding, it cannot be termed to be a formal defect in view of the judgment of this Court rendered in the case of Maya Ram Versus Smt.Sharda Bai reported in 1983 M.P.W.N 378. Learned counsel has also placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of K.S.Bhoopathy & Others Versus Kokila & Others reported in (2000) 5 SCC 458 and contended that in absence of the formal defect, the suit cannot be permitted to be withdrawn with the liberty and in this view of the matter and taking into consideration the judgments of this Court, there is no formal defect to the case at hand, therefore, the Trial Court committed an error of jurisdiction much less illegality to pass the impugned order Annexure P/1 dated 1.8.2015, which warrants interference in this petition.