1993 PLP 1776' (CLC)

(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 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 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. A perusal of sub‑rule (2) of Rule 1 to Order 23, C.P.C., indicates that a suit can be allowed to be withdrawn when the Court is satisfied that the suit must fail by reason of some formal defect or when there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject‑matter Of a suit or part of a claim.

5. Learned counsel for respondents 2 to 5 has supported the prayer of the petitioners for setting aside the impugned order.

6. In a case reported as Nazir Maoraj v. Muhammad Sultan Khan (PLD 1966 (W.P.) Karachi 356) it was held as:‑‑ "It would be necessary to observe that the order disposing of an application under Order XXIII, rule 1 must be a self‑contained one. It must contain the facts in sufficient detail to enable the Court to know the case of the parties and the defect which has led to the application for withdrawal of the suit and the reasons granting the application. The Court must show, while disposing of the application, that it has applied its mind to the provisions contained under Order XXIII, rule 1, C.P.C."

7. In the case in hand respondent No.1, who was the plaintiff before the trial Court, had not disclosed in the application seeking withdrawal of the suit or in the supporting affidavit as to what were the formal defects in the suit which necessitated its withdrawal with permission to file fresh suit. Even the learned Senior Civil Judge has also not disclosed in his order that considering the provisions of Order 23, Rule 1, C.P.C., he had come to the conclusion that there were formal defects in the suit. It has been held in a similar case reported as Town Committee, Dipalpur v. Ahmed Din (PLD 1972 Lahore 290) as:‑‑ The application is apparently couched in terms to bring it within the scope of clause (a) i.e., that the suit must fail by reason of some formal defect, but the allegations in the petition for withdrawal do not show the formal defects nor is it clear that the formal defects if any one of such nature that the suit must fail. Even the order of the learned Civil Judge does not disclose that he was satisfied that there was any formal defect in the case for which reason the suit must fail."

8. Learned Senior Civil Judge has mentioned in his impugned order:‑‑ "He further submitted that defendants 1 to 4 have been passing different orders during pendency of this suit, hence necessity has arisen to withdraw the suit, and file Fresh Proceedings challenging the orders passed during the pendency of this suit." His order, however, does not show that he had concluded that because of the orders passed by the defendants Nos.1 to 4 in the suit which he had perused, there were reasons to believe that the suit must fail, therefore, there was necessity of allowing the prayer of the respondent/plaintiff.

9. In view of the above facts, I am of the view that the impugned order of the learned Senior Civil Judge is not maintainable in law.

10. It has been pointed out by the learned counsel for the petitioners that an application under Order 39, Rules 1 and 2, C.P.C. was pending before the learned Senior Civil Judge and that this Court had given direction vide order dated 21‑5‑1987 to decide the said application but the same was not decided. Another application under Order 7, Rule 11, C.P.C. was also pending before him and in that application the parties had argued the matter and even the written arguments were filed but that application was also not decided,

11. It was the duty of the learned Senior Civil Judge to decide the applications under Order 39, Rules 1 and 2, C.P.C. and under Order 7, Rule 11, C.P.C. first before deciding the application under Order 23, Rule 1, C.P.C. but the learned Judge failed to do so and instead has passed the impugned order without applying his mind to the relevant law on the point.

12. For the foregoing reasons, I set aside the impugned order and remand the matter back to the learned Senior Civil Judge concerned for deciding the applications under Order 39, Rules 1 and 2, C.P.C. and under Order 7, Rule 11, C.P.C. first and decide the application under Order 23 Rule i, C.P.C. in case the application under Order 7, Rule 11, C.P.C., is dismissed. This Revision Application is accordingly allowed with costs to be borne by respondent No.1. H.B.T./M‑1798/K Revision application allowed.