CRP 161/2011 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY Heard Mr. S.K. Ghosh, learned counsel for the petitioner. Considering the order proposed to be passed, it is inessential to issue formal n otice. In challenge is the order dated 26.04.2011 passed by learned Munsiff No. 1, Dhubri in Misc. (J) Case No.80/2011 filed by the petitioner-plaintiff under O rder XXIII Rule 1(3) read with Section 151 of the Civil Procedure Code (hereinaf ter for short referred to as the CPC). Thereby, a prayer was made seeking withd rawal of the suit with a leave to file a fresh suit on the said subject matter. The petitioner had filed the aforementioned suit being Title Suit No.301/2004 ag ainst the Opposite Party No.1 as the contesting defendant and Opposite Party No. 2 & 3 as the proforma defendants. His pleaded case was that out of love and aff ection for his younger brother Bulbul Sk., he took settlement of a Municipal Sta ll No.B-1/8 in the latter’s name in the year 1972. Later, the petitioner’s brot her Bulbul Sk. executed a document in his favour relinquishing his right over th e Stall. It was thereafter, that the petitioner granted lease thereof to the Op posite Party No.1 for a period of one year at a monthly rent of Rs.300/- subject to the condition that the same would be vacated at the end of the said term or a fresh lease agreement would be executed. The Opposite Party No.1 at the end o f the term did neither execute a fresh lease nor vacate the Stall. He also, as the petitioner has alleged, conspired with the widow of Bulbul Sk. (who in the m eantime had expired) to get the Stall transferred in her name and entered into a n agreement with her. Situated thus, the petitioner got a notice served u/s.326 of the Municipal Act on 28.06.2004 and thereafter filed the aforementioned suit praying for the following reliefs : (a) decree of eviction and recovery of possession from the Municipal Stall No. B-1/8 (new Market) by removing the defendant, his agents and heirs, and belongin gs of defendant. (b) decree for entire cost of the suit and other relief, which the plaintiff is entitled in law, equity and good conscience. The Opposite Party No.1 in his written statement denied the petitioner’s ownersh ip of the Stall. He also denied to be a tenant under him and questioned his loc us standi to file the suit. According to him, the Stall belonged to the Municip al Board, Dhubri and that the petitioner was a stranger in the facts and circums tances of the case. He traced the original settlement of the Stall to Bulbul Sk ., deceased brother of the petitioner-plaintiff and pleaded that on his death hi s wife Sukuda Bewa, the proforma Defendant No.2 (since deceased) had been in occ upation and use thereof by paying rent to the Municipal Board. According to the Opposite Party No.1, before the death of the Bulbul Sk. he did not execute any document relinquishing his right, title and interest in the Stall in favour of t he petitioner. He also denied to have entered into any lease thereof with the pe titioner-plaintiff. The proforma Defendant No.2 also toed the line of the Oppos ite Party No.1 in her written statement. Situated thus, the petitioner-plaintiff submitted an application under Order XXI II Rule 1(3) read with Section 151 Code seeking to withdraw the suit as the same , according to him, in view of some formal defects would fail. He sought the lea ve of the Court to allow him to withdraw the suit with a permission to file a fr esh one. He ascribed the omissions to seek a declaration in the suit about his ownership of the Stall and/or the relationship of landlord and tenant between hi m and the Opposite Party No.1 and also for cancellation of the mutation of the S tall in the name of the proforma Defendant No.2 as formal defects. According to him, having regard to the framework of the suit, the State of Assam was also a necessary party. This prayer was resisted in writing by the Opposite Party No.1, contending inter alia that if the petitioner was allowed to withdraw the suit with a leave to fi le a fresh one, it would amount to giving him an opportunity of removing the def ects which are substantial in nature and change the nature and character of the lis. The learned trial Court by the impugned order rejected the application of the pe titioner on the ground that the defects mentioned by him were not formal in natu re and as the conditions precedent for exercise of power under Order XXIII Rule 1(3) did not exist the relief as prayed for ought not to be granted. Mr. Ghosh has argued that having regard to the pleadings of the parties, the sui t would fail from the defects from which it suffers and as the same are formal i n nature, in the interest of justice, this Court ought to intervene in the exerc ise of its power under Section 115 of the CPC and Article 227 of the Constitutio n of India. On a plain perusal of the pleadings of the parties, this Court is not inclined t o agree with the petitioner-plaintiff’s contentions. Firstly, the averments made in the plaint clearly disclose that the suit suffers from omissions in framing the relief which ought to have been sought for on the basis of the averments mad e in the plaint. To allow the petitioner-plaintiff to withdraw the suit with the leave as prayed for at this stage, in view of the challenge to his ownership of the suit Stall and or denial of landlord-tenant relationship between him and th e Opposite Party No.1 and also for non- impleadment of State of Assam, in the op inion of this Court would amount to granting him an opportunity to remedy this o missions in his next suit. The defects as admitted by the petitioner can by no means be said to be formal in nature and have a vital bearing on the frame and c haracter of the suit and the reliefs prayed for therein. It is a trite law that the power under Order XXIII Rule 1 (3) is to be exercis ed if the Court is satisfied that a suit must fail by reason of some formal defe cts or that there are sufficient grounds to allow the plaintiff to institute a s uit for the subject matter of a suit or part of the claim. Neither the defects a s pointed by the petitioner-plaintiff can be construed as formal in nature nor t here appears to be any sufficient ground to accord him the liberty to file a fre sh suit. The defects do not, in the opinion of this Court, stem from any reason beyond the control of the petitioner-plaintiff and that in the facts and circum stances of the case the prayer for withdrawal with a leave to be filed a fresh s uit if allowed would be inconsistent with the letter and spirit that Order XXIII Rule 1(3) of the CPC. In the facts and circumstances of the case, this Court fi nds no merit in this petition, which is accordingly rejected. No costs.