1996 PLP 1178 (CLC)

Mumtaz Muhammad Khan for Petitioner. Subedar Dilber Khan son of Khaista Gul of Merozai Tehsil and District Kohat brought a suit against Said Akbar son of Sarwar for possession through partition of 1/2 share in the suit house.

2. After contest by the defendant and conclusion of trial Mr. Qalandar Ali Khan learned Senior Civil Judge, Kohat non‑suited the plaintiff through his judgment dated 12‑4‑1992. The plaintiff Dilbar Khan went in appeal and during such hearing filed an application for withdrawal of suit with permission to file a fresh suit. This application too was dismissed by the learned Additional District Judge, Kohat on 4‑12‑1995 and hence this revision.

3. A suit can be allowed to be withdrawn with permission to file a fresh suit on the same cause of action provided it is likely to be dismissed on the basis of some formal defect having been noticed. Such formal defect as mentioned in the application itself is that the disputed house is in fact situated in Khasra 1167 whereas Khasra 1166 in the plaint had inadvertently been mentioned. This is not at all a formal defect because the Khasra in which the house, according to plaintiff, is located, stands already mentioned in the plaint. The only difference is that Khasra 1166 stands mentioned in addition to Khasra 1167. This makes no difference because the Court can and could have ascertained the real facts in the light of evidence and could very well determine as to which the real Khasra was where the house was situated. This, in reality is no defect at all muchless a defect whereby the suit was likely to be dismissed.

4. The second defect as mentioned in the petition was that the boundaries of the suit house have not correctly been mentioned in the plaint, the correction whereof had become necessary and that additional documents had not been furnished with the plaint.

5. The latter alleged defect pertains to the furnishing of evidence. and production of documents and hence is not at all a defect concerning pleadings. Moreover, the non‑furnishing of documents had its own repercussions and additional evidence can be brought under a different procedure, the remedy whereof has never been the withdrawal of suit.

6. So far as the incorrect boundaries of the house are concerned, those can be corrected by way of amendment of the pleadings which has never been the cause resulting into this revision. The better for the plaintiff would have been to have had applied for amendment of the plaint and not the withdrawal which is normally not allowed to cover some exceeding negligence on part of the plaintiff and which is not allowed to afford an opportunity to the plaintiff to commence a fresh trial in order to avoid the result of the previous one, on merits. If the circumstances allowed, the plaintiff may apply for amendment of plaint, whereas, the instant withdrawal was rightly refused in the circumstances. The revision petition is hereby dismissed in limine alongwith CM 78/96. A.A./1899/P Revision dismissed.