(1) JUDGMENT REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5462 OF 2009 Mukund s/o. Vishwanath Sonawane, Age : 50 years, Occupation : Agriculture, .. Petitioner R/o. N-13, Bharat Nagar, HUDCO, (Original Aurangabad. plaintiff) versus 1. Hira s/o. Fulchand Salampure, Age : 50 years, Occupation : Agriculture, R/o. Pahadsinghpura, Begumpura, Aurangabad. 2. Tara s/o. Fulchand Salampure, Age : 45 years, Occupation : Agriculture, R/o. Pahadsinghpura, Begumpura, Aurangabad. 3. Gajmal s/o. Narayan Mali, Age : 60 years, Occupation : Pensioner, R/o. N-9, Opp. Lifeline Children .. Respondents Hospital, Ranjana Society, (Original CIDCO, Aurangabad. defendants) .......................... (2) Mr. K.S. Naik, Advocate, for the petitioner. Mr. S.R. Deshpande, Advocate, for respondent nos.1 to 3. .......................... CORAM : B.R. GAVAI, J. DATE : 19TH NOVEMBER 2009. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioner impugns the order dated 29th June 2009, passed by the learned 4th Joint Civil Judge (Junior Division), Aurangabad, below Exhibit 21 in Regular Civil Suit No. 776/2008, thereby rejecting the application filed by the present petitioner for withdrawal of the suit with liberty to file a fresh suit, on the ground that there is formal defect. 3. The petitioner plaintiff has filed a suit for perpetual injunction. The claim of the petitioner plaintiff is based on an agreement of sale dated 25th February 2008. In the suit i.e. Regular Civil Suit No. 776/2008, an application under Order XXXIX Rule 1 and 2, for temporary injunction, was also filed. The same is rejected. The said order has not been challenged and, as such, his achieved finality. (3) 4. It appears from the written statement, that the suit of the plaintiff was resisted by the respondents defendants on several grounds. One of the grounds raised in the written statement was that in the original agreement, the proposed purchasers were three, whereas the suit was filed by only one person. It is the contention of the defendants that the suit is bad in law on the ground of non-joinder of necessary parties. 5. Noticing this defect, an application below Exhibit 21 came to be filed by the petitioner for withdrawal of the said suit. The petitioner has specifically stated in the said application, that the suit suffered formal defect on account of non-joinder of necessary parties and in that view of the matter, the petitioner desires to withdraw the suit and file a fresh suit after curing the defects. The said application was resisted by the respondents defendants. The learned Judge of the trial court, by the impugned order, has rejected the said application. Hence, the present petition. 6. Mr. K.S. Naik, learned Counsel appearing for the petitioner, submits that the suit which was filed by the present petitioner, suffered from formal defect of non-joinder of necessary parties and, as such, the petitioner desired to withdraw the said suit with liberty to file a fresh suit after curing the defects. It is submitted that the learned Judge of the trial court has erroneously rejected the said application by holding that the defects pointed out were not formal defects. 7. Mr. S.R. Deshpande, learned Counsel appearing for the (4) respondents, submits that the learned Judge of the trial court has rightly rejected the application. He submits that the suit suffered from various lacunae which were pointed out in the written statement. It is, therefore, submitted that the valuable right had accrued to the petitioner which had achieved finality and, therefore, a fresh suit was not permissible. He submits that the document, on which the petitioner relies i.e. the alleged agreement of sale, is not valid in the eye of law, inasmuch as, the same is not on requisite stamps and, as such, not admissible in evidence. He also submits that the alleged agreement of sale does not create any right in favour of the petitioner. He relies on the judgment of the learned Single Judge of this court in the case of Veerbhadrappa s/o. Mahadappa Rachatte Vs. Mahalingappa s/o. Gurlingappa Karanje (2009(4) Mh.L.J. 108). 8. Order XXIII, Sub-Section 3 of Section 1 of the Code of Civil Procedure, 1908, reads thus : "Withdrawal of suit or abandonment of part of claim - (1) ............................................................................. (2) ............................................................................. (3) Where the Court is satisfied, - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit (5) 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 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. " It is thus clear from the perusal of the said provision, that if the court is satisfied that a suit must fail by reason of some formal defect, it has a discretion to grant leave to the plaintiff to withdraw from such suit with liberty to institute a fresh suit. The said discretion can also be exercised by the trial court by granting permission to the plaintiff to withdraw from such suit 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. 9. In the present case, from the application below Exhibit 21, it can clearly be seen that the petitioner has stated that there was formal defect in the suit regarding non-joinder of parties. Though the learned Counsel appearing for the respondents defendants submits that the said defect cannot be termed as a formal defect, I am not in a position to accept the said submission. 10. Admittedly, the stage at which such an application was made, was prior to commencement of trial. Though the parties had filed their pleadings, the issues are yet to be framed. The plaintiff could have very well moved an application under Order VI Rule 17 of the Code of Civil (6) Procedure, to cure the said defect and implead the necessary parties. However, by not doing so, it cannot be said that the petitioner has lost a right to cure the said defect. As already discussed herein above, the trial is yet to commence and the petitioner would have been very well in a position to amend the suit by filing an application under Order 1 Rule 10 of the Code of Civil Procedure, for adding necessary parties. 11. In so far as reliance placed by Mr. S.R. Deshpande, learned Counsel appearing for the respondents, on the judgment of the learned Single Judge of this court, in the case of Veerbhadrappa s/o. Mahadappa Rachatte (supra), is concerned, in my considered view, the said judgment is of no assistance to the case of the respondents. In the said judgment, the learned Single Judge of this court has held that the plaintiff, seeking withdrawal of suit with liberty to present fresh suit, must disclose nature of formal defect in the application. It has been further held that if the application remains silent on this material point, such an application cannot be entertained by the court. In the present case, the petitioner has clearly stated in his application, that the non-joinder of necessary parties was a formal defect, which he wanted to cure. 12. It is a settled law, that the procedural laws are handmade of substantive justice. Unless there is something in law which prohibits a party from doing something, the rules of procedure are to be liberally construed. As already discussed herein above, I am of the considered view that the defect was a formal defect which could have been cured by the petitioner either by taking recourse to Order VI Rule 17 or Order 1 Rule 10 of the Code of Civil Procedure, 1908. In that view of the matter, I (7) find that the learned Judge of the trial court has erred in rejecting the application. 13. In so far as the submission advanced by Mr. S.R. Deshpande, learned Counsel appearing for the respondents, regarding legality or otherwise of the agreement dated 25th February 2008, is concerned, I am afraid, as to whether the court can go into that question at this stage. At this stage, the court is only required to consider, as to whether the jurisdiction exercised by the trial court, in rejecting application of the petitioner, was proper or not. The merits of the matter cannot be gone into, at this stage. In that view of the matter, I am not inclined to consider the submission made by the learned Counsel appearing for the respondents, regarding legality or otherwise of the agreement dated 25th February 2008, inasmuch as, the same may prejudice rights of either of the parties. 14. In the result, I find that the impugned order dated 29th June 2009 is liable to be quashed and set aside. 15. Hence, the petition is allowed. (i) The impugned order dated 29th June 2009, passed by the learned 4th Joint Civil Judge (Junior Division), Aurangabad, below Exhibit 21 in Regular Civil Suit No. 776/2008, thereby rejecting the application filed by the present petitioner for withdrawal of the suit with liberty to file a fresh suit, is quashed and set aside. (8) (ii) The application Exhibit 21 before the trial court stands allowed. However, the same shall be subject to the costs which are quantified at Rs. 5,000/- (Rupees Five Thousand). The costs be paid by the petitioner plaintiff to the respondents defendants within a period of four weeks from today. 16. Rule is made absolute in the aforesaid terms. ( B.R. GAVAI ) JUDGE ......................... bgp/wp5462