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mohan pandya   09 October 2021

Formal defect

I want to know meaning of the word 'Formal defect'  used in order 23 CPC? 



Learning

 2 Replies

Anusha Singh   09 October 2021

As per your query it is understood that you need information about the term “Formal Defect” in Order 23 Rule 1 of Code of Civil Procedure.

“Formal defect” under clause (a) of sub-rule (3)

The Supreme Court in V. Rajendran v. Annasamy Pandian, after considering the judicial opinions of various High Courts, has held that “formal defect” is a defect of form prescribed by the rules of procedure. For example, want of notice under Section 80 CPC, improper valuation of the suit, affixing insufficient court fee, ambiguity regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action, etc. The Supreme Court further observed that “formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. It can be observed that many of the “formal defects” pointed out by the Supreme Court are grounds for rejection of plaint under Order 7 Rule 11 CPC.

Hope it helps!

 

Regards,

Anusha Singh

Ananya Gosain   13 October 2021

Greetings!

As per Order 23 CPC, the trial court is empowered, upon an application, to allow a plaintiff to withdraw his defective suit, take necessary steps to cure that defect, and then institute a fresh suit on the same cause of action and claiming the same reliefs. 

 "Formal defect" is a defect of the form prescribed by the Rules of procedure such as, want of notice Under Section 80 Code of Civil Procedure, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc, as described above. I would like to give example of another case for better clarity 

In KS. Bhoopathy and Ors. v. Kokila and Ors. the Appellants 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 as Survey No. 192/14. Court held that 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."

Regards


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