JANAK RAJ AND ANOTHER Vs. SUKHDEV AND OTHERS

JUDGEMENT

(1.) 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:-