1986 PLP 1316 (CLC)

3. The law applicable to the proposition under consideration is prescribed under Order XXIII, rule 1(1), C.P.C. Law provides that at any time after the institution of a suit plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. Sub‑rule (2) of rule I lays down that where the Court is satisfied:‑

(a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit in respect of the subject‑matter of such suit or such part of a claim. It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject‑matter of such suit or such part of a claim. In order to avai1 withdrawal of suit, to bring a fresh, suit, either of two conditions is required to exist. In absence of either of the conditions, a withdrawal for institution of fresh suit is not permissible under law.

4. The phrase "formal defect" is not defined in the Code. Word "formal" relates to matters of form. It is used in pleadings, indictments, affidavits, conveyances and relates to mode and form of style of expressing the facts involved. Word "form" is defined in 'Black's Law Dictionary' as under:‑ "A model or skeleton of an instrument to be used in a judicial proceeding or legal transaction, containing the principal necessary matters, the proper technical terms or phrases end whatever else is necessary to make it formally correct, arranged in proper and mechanical order, and capable of being adopted to the circumstances of the specific case. In contradistinction to "substance," "form" means the legal or technical manner or order to be observed in legal instruments or judicial proceedings, or in the construction of legal documents or processes. Antithesis of "substance."

5. It is evident from the ordinary dictionary meaning of the term "formal defect" that such a defect must rest on recognized methodical order or frame of pleadings, including an irregularity of method. A strict construction of the expression "formal defect" enlists various formalities recognized by the procedure prescribed under the Code. When pleading, by absence of observing any one of such formalities, does not permit to proceed further in the suit, or reflects that by absence of a particular formality the suit will ultimately fail, such a case is covered by expression "formal defect". Moreover, it is also essential to satisfy that such defect cannot be rectified by seeking amendment or otherwise. When defect in question can be cured under other provisions of the Code, to advance the cause of dispensation of justice, permission for withdrawal of the suit, to bring a fresh suit, may be refused.

6. In present case, it is alleged that Muhammad Hussain and Muhammad Nazir Khan, vendees are necessary parties and their non-?joinder as defendants, is a formal defect likely to fail the suit. Keeping in view the scope of significance of expression .formal defect, non‑joinder or failure to implead necessary parties is not considered as a formal defect. The proposition received attention of various Courts. The consensus is that non‑joinder of parties is not a formal defect envisaged under Order XXIII, rule 1(2) of the Code.

7. In Haridas Sadhu Khan's case A I R 1934 Cal. 59, the learned Judges made the following observations:‑

"The defects that certain necessary parties were not impleaded and certain debutter properties were not included in the claim, are not formal defects. The order allowing withdrawal under Order XXIII, rule is not justified where there is no reason why the suit should fail by reason of any formal defects nor is there any other sufficient reason for fresh suit." In Muktanath Tewari's case A I R 1934 All. 67, it was observed as under:‑ "The expression "formal defect" must be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merits of the case. The merits of the case are affected where the plaintiffs say that it would be necessary to have a stranger to the suit in the array of parties in order to obtain a correct adjudication of the controversy between the parties. Hence, the defect that certain necessary parties were not included is not a formal defect within Order XXII1, rule 1." In Asian Assurance Co. Ltd.'s case A I R 1950 Bom. 378, it was held as under: ‑ "A defect of non‑Joinder of some of the parties to the suit is not a formal defect contemplated by rule I(2)." In Nazir Mooraj's case P L D 1966 Kar. 356, Mr. Justice Inamullah, J., while discussing the proposition under consideration in that case, observed as:‑-- "

mere non‑joinder of parties would not be covered by the expression formal defect within the meaning of Order XXIII, rule 1, C.P.C. It is true the expression formal defect must be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merit of the case. Formal defect does not, however, include non‑Joinder of parties. "

8. The benefit of "other sufficient grounds" can be availed when' the defect discovered in the pleadings is bona fide; refusal to withdraw suit, to bring a fresh suit, is likely to lead in multifarious litigation: withdrawal does not injure vested rights of opposite party and serves the ends of justice. These may be described as sufficient grounds contemplated by law. In presence of either of these positions, it is fair and just to permit plaintiff to withdraw his suit, in order to bring a fresh suit. The other ground stated by petitioner is that while drawing plaint, the writer, by mistake, failed to include important items. He? has not described any one of those matters and made a vague statement This is not enough as it being a vague averment, does not constitute a sufficient ground to seek withdrawal for bringing a fresh suit. In Shanu Sheikh's case A I R 1917 Cal. 36, the learned Judge observed as under:‑

"A suit in which a number of issues were raised and tried by the Munsif at considerable length was dismissed on the ground that the plaintiff had no title and that his claim was barred by limitation. On appeal, on an application made by the plaintiff appellant for withdrawing the suit and the appeal with liberty to bring a fresh suit on the same cause of action, stating therein that "through the mistake of the writer who drew the plaint some important items were left out", the appellate Court permitted the plaintiff to withdraw the suit and the appeal with liberty to bring a fresh suit. Held: that there were no formal defects or sufficient cause within Order XXIII, rule 1, C . P.C. for allowing the plaintiff to withdraw both his appeal and the original suit and that, therefore, the order could be set aside by the High Court in revision under section 115, C.P.C.

9. It is accepted that the factum of alienation of the suit land in favour of Muhammad Hussain and subsequently in favour of Muhammad Nazir Khan, plaintiff in the counter‑suit, was not in the knowledge of the petitioner, at the time of the institution of the suit. His failure to challenge the alienation in favour of Muhammad Hussain and Muhammad Nazir Khan, in respect of the suit land, is neither deliberate nor such a omission is incurable. The claim of the plaintiff /petitioner, primarily, rests on possession which he has alleged to be adverse to the owners of the suit land. The primary averment of the plaintiff being a question of adverse possession, to challenge alienation of the suit land is a secondary ground of attack.

10. The trial Court has rightly concluded that the case of the petitioner is not covered by the provisions of sub‑rule (2) of Rule 1 of Order XXIII of the Code. There is no force in the petition. It is, therefore, dismissed. M . Y . H .?????????????????????????????????????????????????????? Petition dismissed.