1 WP 549/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 549 OF 2011 Mallikarjun Tukaram Anjikhane .. Petitioner V/s Pralhadrao Jalwadkar since deceased through legal heirs Smt. Shantabai Pralhadrao Jalwadkar & Ors. .. Respondents Mr. I.M. Khairdi for the petitioner. Mr. Prasad B. Kulkarni for respondent nos.1 to 3. CORAM : D.G. KARNIK, J. DATE : 11TH JULY 2011 P.C. : 1. Heard. 2. This petition is directed against the order dated 22nd July 2010 passed by the learned Civil Judge, Junior Division, Solapur, rejecting the application of the petitioner (original plaintiff) for permission to withdraw the suit with liberty to file fresh suit in respect of the same subject matter. 3. Sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure provides that where the court is satisfied that a suit 2 WP 549/2011 must fail by reason of some formal defect or 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 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. Condition precedent for grant of permission for withdrawal of the suit with liberty to file fresh suit in respect of same subject matter is that the suit is likely to fail on account of some formal defect or that there is other sufficient ground like similar to formal defect in the suit. In the present case, no formal defect in the suit could be pointed out to the trial Court and was not pointed out before me. Counsel for the petitioner however submitted that there was a previous suit, namely R.C.S. No. 186 of 1970, filed by the respondent’s father against the petitioner’s father and the petitioner was not aware of the exparte decree in the said suit. In my view, absence of knowledge of the previous suit cannot be regarded as a formal defect. Even if it is assumed that the petitioner was not aware of the said suit, still that does not alter the position in any way because the parties to the present suit are litigating under the same title as the parties in the previous suit and the principles of res judicata would apply to the second suit. That is a 3 WP 549/2011 substantive reason for dismissal of the second suit and not a formal defect in the second suit. As such, the trial Court committed no error in refusing the permission. Writ petition is rejected summarily. (D.G. KARNIK, J.)