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2017 (1) TMI 1753 - SC - Indian LawsDeclining the leave to the Appellants to withdraw the suit - HELD THAT:- In the present case, the Appellants have filed the suit describing the suit property as Survey No. 192/9 but the Respondents are said to have transferred the patta for the suit property settling as Survey No. 192/14. The defect in the survey number of the suit property goes to the very core of the subject matter of the suit and the entire proceedings would be fruitless if the decree holder is not able to get the decree executed successfully and thus, the said defect will constitute to be a "formal defect" within the meaning of Order XXIII Rule 1(3)(a) Code of Civil Procedure. In the facts and circumstance of the case, the trial court considered the allegation set out in the application as a ground for withdrawal. The view taken by the trial court that the suit suffered from a formal defect to allow the Appellants to withdraw the suit with permission to institute a fresh suit, is correct. The High Court was not right in interfering with the discretion exercised by the trial court, permitting the Appellants to withdraw the suit with liberty to file a fresh suit. The order of the trial court is restored with modification to the effect that the cost imposed on the Appellants is enhanced from ₹ 3,000/- to ₹ 10,000/- - appeal allowed.
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