P L D 1984 Lahore 230 (PLP)

This revision petition arises out of the judgment dated 11th January, 1981 of the learned Additional District Judge, Sheikhpura, whereby the respondent was allowed to withdraw the suit under Order XXIII, rule 1, C. P. C. with permission to file afresh by setting aside the judgment and decree dated 3‑9‑1980 of the trial Court dismissing the plaintiff/respondents suit.

2. Facts relevant for disposal of this revision petition, as per record, are that Muhammad Asghar Ali brought a suit for declaration to the effect that he is owner in possession of the disputed land with consequential relief by way of permanent injunction restraining the defendant/petitioner from alienating the land to anybody else. Originally the respondent had averred in the plaint that he was owner in possession of 28 Kanals of land out of Square No. 45 Killas Nos. 14, 15, 16 and 17/l situated in village Jewanpura Kalan, Tehsil and District Sheikhupura and the registered sale‑deed dated 26‑9‑1960, purported to be executed by the plaintiff/respondent in favour of the defendant/petitioner was fictitious and forged. The defendant/petitioner resisted the suit and filed written statement wherein it was inter alia averred that .;n 26‑9‑1966 the plaintiff/respondent had executed a sale‑deed in respect of the suit land in his favour in consideration of Rs. 3,000, therefore, the suit was liable to be dismissed.

3. As many as 10 issues were framed out of the pleadings of the parties. The first seven‑ issues were technical in nature. Those were decided against the defendant/petitioner. The following issues on merits were struck down: ‑ "

8. Whether the sale‑deed dated 29‑6‑1960 is false, fictitious based upon fraud and, therefore, unlawful arid void ? O.P.P:

9. Whether the plaintiff is owner of the suit land? O.P.P." The learned trial Court decided the said issues against the plaintiff/ respondent and consequently dismissed the suit by judgment and decree dated 3‑9‑1980. It may be pointed out that the trial Court decided issue No, 8 against the plaintiff/respondent with the observation that the registered sale deed (Exh. D/1), dated 26‑9‑1966, having remained unchallenged in the suit while expressly challenged the so called sale deed dated 26‑9‑1960, being non‑existent, the question of recording any finding on its propriety was futile. The defendant/petitioner challenged this judgment and decree before the First Appellate Court. During the course of arguments on the appeal, learned counsel for the plaintiff/respondent made an oral petition for with drawal of the suit with liberty to file a fresh suit under Order XXIII, rule 1, C. P. C. on the ground that there were formal defects in the suit. Learned Additional District Judge allowed the oral petition. He took the view that since the sale‑deed (Exh. P/4), dated 26‑9‑1966, remained unchallenged in the suit, withdrawal of the suit was in the interest of justice.

5. Mr. Amjad Hussain Syed, learned counsel for the defendant/peti tioner submitted that there was no plausible formal defect in the plaint within the ambit of Order XXIII, rule 1(5)(a), C. P. C., therefore, permission for filing a fresh suit was unjustified. He next submitted that even if there was some defect in date of the sale‑deed or there was some defect regarding area of the disputed land, the same could have been cured by making application for amendment of the plaint rather than having recourse to provision of Order XXIII, rule 1, C. P. C. He further contended 'that mere wrong description of the property or error as to the date of sale -deed which is rectifiable by making necessary amendment in the pleadings, is not covered by the expression "formal defect.' as used in Order XXIII, rule 1, C. P. C., therefore, the First Appellate Court acted illegally and with material irregularity in passing the impugned order. Reliance was placed on Town Committee; Depalpur v. Ahmed Din (P L D 1972 Lab. 290), wherein it has been held that application for seeking withdrawal based on being formal defect when in fact no such defect was disclosed for which the suit could fail, the Court acted illegally and with material irregularity in passing order of withdrawal. Reference was also made to Sayedur Rehman Molla v. Abdur Rehman (P L D 1961 Dacca 844), wherein it was held that mere vague description of property in the plaint due to carelessness on the part of the lawyer is not a valid ground for allowing withdrawal of a suit with liberty to file a fresh suit where notwithstanding the fact that defect was pointed out by the defendant/peti tioner in the written statement, yet the plaintiff/respondent in or his lawyer did not care to amend the plaint and gave proper description of the property ; rather the plaintiff led evidence which was also vague. Learned counsel for the petitioner also strongly relied upon Ramuzuddin Chowkidar v. Babar Ali Molla (1971 D L C 806) to contend that the relief contemplated under Order XXII1, rule 1, C. P. C. is discretionary in nature and the plaintiff invoking such relief must come before the Court at an earliest oppor tunity without loss of time; the ground for withdrawal must be cognet and not fanciful and the Court must satisfy itself as to its genuineness and record specific finding on the formal defect or ground on which the withdrawal is allowed with liberty to sue afresh. Learned for the respondent frankly conceded that there was no formal defect in the plaint. He however, placed reliance on Gurprit Singh v. Punjab Government (A I R 1946 Lab. 429) and Bahadur Khan v. Sultan (P L D 1967 L4h. 531.), to contend that the Appellate Court in exercise of its discretion under Order XXIII, rule 4(2)(b), C. P. C. was fully competent to allow the oral petition, if the matter‑ was‑ covered by the expression "other. Sufficient ground". In the alternative an oral petition was made for the amendment of the plaint. He next submitted that the mistake committed in the plaint was not intentional but because of the fact that the defendant/petitioner had himself before the Revenue Officer in appeal mentioned the date of sale deed as 29‑6‑1960. This was also the date mentioned in the remand order dated 27‑8‑1977 of the Collector. The trial Court framed no issue on this point.

6. Having considered the submissions of learned counsel for the parties, I am inclined to hold that the authorities cited at the Bar by learned counsel for the petitioner relate to the scope of expression "formal defect" as used in Order XXI(I, rule I (a), C. P. C. Here there is no dispute that the alleged defect was not covered by the words "formal defect". The question arises as to whether the case in hand is covered by the expression "other, sufficient grounds" as used in clause (b) ibid. I follow with respect the dictum laid down in Gurprit Singh's case that the words "other sufficient grounds" as used in Order X n11I, rule 1(2)(b), C. P. C. are not ejusdem generis with the words "formal defect" referred to in rule 1(2)(a) of Order XXIII, C. P. C. and are much wider in signification and can cover all those cases which appear to Court as affording such ground. This expression is certainly not restricted to the grounds relatable to "formal defect". The same view was taken in Municipal Committee, Chakwal v. Fateh Khan (P L D 1959 Lab. 535) and Bahadur Khan's case. In Gurprit Singh's case, it was also held that the leave to withdraw from the suit with liberty to institute a fresh suit in respect of the same subject‑ matter even at the stage of appeal can be granted. Reference may also be made to Ismail v. Fida All (P L D 1965 S C 634), wherein on the oral prayer of learned counsel for the plaintiff, the Supreme Court granted leave for withdrawal of the suit with permission to file a fresh suit. In the instant case, learned Additional District Judge in the exercise of his discre tion under Order XXIII, rule 1, C. P. C. allowed the oral petition for withdra wal of the suit with liberty to file fresh suit on cogent reasons. The mere fact that the plaintiff/respondent took no step for withdrawal of the suit at the trial stage and invoked the provisions of Order XXIII, rule 1, C. P. C. for the first time at the appellate stage, would not ipso facto render the impugned order illegal within the ambit of section 115, C. P. C. It is well‑settled that the Court in the exercise of revisional jurisdiction will not interfere to current every irregularity, but only where grave injustice or hardship will result on account of non‑interference. It will be unjust to deprive plaintiff/ respondent from filing a fresh suit to establish his valuable proprietary rights. The rationale behind Order XXIII. rule 1, C. P. C. is to prevent technicalities from defeating justice. Even if it is assumed that the said pro visions are not attracted here, the plaint can be allowed to be amended under Order VI, rule 17, Code of Civil Procedure, for the purpose of determining the real question in controversy at any stage. This is, therefore, not a fit case for interference in revision. In view of the above, the petition fails and is hereby dismissed, but there shall be no order as to costs. M. A. K. Petition dismissed.