2016 PLP 1936 (YLR)

QALANDAR ALI KHAN, J.

Aggrieved of the order of learned Additional District Judge-III, Abbottabad dated 25.06.2011, accepting application of the respondents for withdrawal of the suit with permission to file a fresh one on payment of cost of Rs.10,000/-, the petitioners have moved this Court through the instant revision petition for setting aside the aforesaid order of learned Additional District Judge-III, Abbottabad, and restoration of the judgment dated 11.11.2010, whereby the learned Civil Judge-V, Abbottabad dismissed suit of the predecessor of the respondent/plaintiff for declaration, perpetual injunction, possession and specific performance.

2. The predecessor of the respondents/plaintiff, Muhammad Rafique, had lodged suit against Rustam etc./ predecessor of the petitioners/defendants, wherein, the plaintiff prayed for declaration in respect of the suit land on the basis of certain mutations, with prayer for perpetual injunction, possession and specific performance for attestation of unattested mutation No. 14202. The suit was contested by the defendants, giving rise to as many as six issues; but the suit was eventually dismissed by the learned Civil Judge-V, Abbottabad vide his order dated 11.11.2010, when he arrived at the conclusion that none of the mutations whereupon claim of ownership was based were proved. The successors of the deceased plaintiff, Mst. Sikandar Jan etc; preferred appeal and, subsequently, also filed application for amendment in the plaint or in the alternative withdrawal of the suit with permission to file a fresh suit. The application was replied to and plea raised in the application was contested on several grounds including the ground of application having been moved at a very belated stage. However, the learned Additional District Judge-III, Abbottabad allowed the application and granted permission to the appellants to withdraw the suit with permission to file a fresh one on payment of cost of Rs. 10,000/-.

3. Arguments of learned counsel for the parties were heard and record perused.

4. The provision of Order XXIII, Rule 1(2), C.P.C. governs withdrawal of suit, of-course, with the condition that there is formal defect in the suit. Therefore, it becomes imperative to see whether suit of the plaintiff suffered from any formal defect. In their application, appellants claimed that in their suit they combined together conflicting prayers for declaration and specific performance which was legally not possible and that there was no need to pray for declaration in the presence of prayer for specific performance. They further averred that impleadment of Bashir Khan son of Gohar Rehman through whom mutation No.13191 was attested on 17.02.2004 was also necessary for prayer of declaration.

5. Apart from the fact that application was moved at belated stage when suit of the appellants had already been dismissed by the learned Civil Judge-V, Abbottabad, vide his order dated 11.11.2010, the applicants also failed to disclose the formal defect, as declaration was sought on the basis of mutations Nos.14205, 13191 and unattested mutation No.14202, while prayer for specific performance was made only on the basis of mutation No.14202. It may be noted here that prayer for specific performance was made in the alternative. It is, therefore, something beyond comprehension as to how the appellants detected formal defect in their suit so late in the day when their suit had already been dismissed on merits on the ground of their failure to prove the said two mutations, rather any transaction in their favour. The learned Appellate Court altogether overlooked this aspect while allowing application of the appellants. It may also be pointed out here that the matter of ownership of the suit land on the basis of the said two mutations and so-called obligation on the part of the defendants to get the unattested mutation No. 14202 attested were directly and substantially issue in the suit, and in such a situation, when the defect pointed out was substantial and latent in nature, touching merits of the case, the same could not be considered as formal defect in the plaint to make out a ground for the withdrawal of the suit in view of 2001 SCMR 148 and PLD 1981 Peshawar 72.

6. The order of the learned Appellate Court, therefore, suffers from illegality and material irregularity, and is, as such, not sustainable.

7. Consequently, on the acceptance of the revision petition, the order of learned Appellate Court dated 25.06.2011 is set aside, with the result the appeal by the respondents/appellants is remanded to the learned Appellate Court, Abbottabad, for decision on merits. ZC/66/P Case remanded.