P L D 1983 Peshawar 115 (PLP)

(4) If issue No. 3 is proved, whether the plaintiff has restored the land by repaying the sale consideration to the said Darwaiz Malak ? (5) Whether, the‑ suit land has been sold by Sher Afzal to the defendant, if so, when for what consideration and with what effect ? (6) Whether the said Sher Afzal has enhanced the mortgage security? (7) Whether the plaintiff has got any cause of action ? (8) Whether the suit is competent in its form ? (9) Whether the plaintiff is estopped to sue ? (10) Whether the defendant is protected under section 41 of T. P. Act? (11) Whether the suit land has been properly described? (12) Whether the plaintiff has improved his case in the amended plaint ? (13) Whether the plaintiff is entitled to the decree prayed for ? (14) Relief ? After recording such evidence of the parties, which they wished to adduce, the learned trial Judge held that the plaintiff could not prove that he ever mortgaged the suit land alongwith Sher Afzal to the defendant. Accordingly, he dismissed their suit on 31‑5‑1979 and the parties left to bear their own costs.

3. Dissatisfied with the above judgment and decree, Bashi Khan plaintiff No. I filed an appeal before the District Judge on 25‑6‑1979 but on 24‑1‑1980, learned counsel appearing for the appellant submitted an applica tion under Order XXIII, rule ,1, C. P. C. for the withdrawal of the suit on account of a formal defect, and also with permission to file another suit on the same cause of action. In the application it was contended that the plaintiff has failed to ask in his plaint that the sale‑deed allegedly executed in favour of the respondent by Sher Afzal Khan deceased brother of the plaintiff‑appellant, on 28‑5‑1967, copy of which is Exh. D. W 1/1) is fictitious, fraudulent and the said Sher Afzal Khan never alienated the suit land in favour of the defendant‑respondent ; that inadvertently the plaintiff appellant did not ask for the setting aside and cancellation of the so‑called sale‑deed, therefore, his suit is liable to dismissal. Accordingly, through application under Order XXIII, rule 1, C. P. C. he prayed for the withdrawal of his suit with permission to file another suit on the same cause of action.

4. The learned District Judge after hearing the learned counsel for the parties came to the conclusion that the contention raised by the plaintiff- appellant in the application for withdrawal is not without substance. Rather it is supported by the written statement of the defendant‑respondent. As such, the learned lower appellate Court accepted the application as well as the appeal, set aside the judgment and decree of the trial Judge and permitted the plaintiff‑appellant to withdraw from his suit and file another' one on the same cause of action, on payment of Rs. 100 as costs.

5. Learned counsel for the parties heard and record perused. A perusal of the written‑statement filed by the petitioner‑defendant in the trial Court also shows that he has objected to the form of the suit, and on this contention issue No. 8 was framed by the trial Judge. As such, there was no alternative left to the plaintiff‑respondent but to apply for the withdrawal of his suit with permission to file another one on the same cause of action; as envisaged under Order XXIII, rule 1 of the Code of Civil Procedure, and the learned District Judge was legally justified in allowing the said application. The learned counsel for the petitioner‑defendant could not convince me that the District Judge has acted illegally. Besides this, the contention of the learned counsel for the petitioner‑defendant that the application for withdrawal was filed at a very late stage, is also without any force. The relevant law says that such an application can be filed at any stage of the proceedings. I, therefore, hold that the arguments advanced by the learned counsel for the plaintiff‑respondent are forceful. He also cited Nazir Mooraj v. Muhammad Sultan Khan (P L D 1966 (W. P.) Kar. 356) wherein it was held that expression "formal defect" must be given wide and liberal meaning and be deemed to connote every defect which does not affect merits of case. . It was further held that defect must be of such nature as to entail dismissal of suit. In the case in hand, the learned counsel for the plaintiff‑respondent has clearly mentioned in the application under Order XXIII, rule 1, C. P. C. that inadvertently the plaintiff did not ask for the setting aside and cancellation of the so‑called sale‑deed, therefore, his suit was liable to dismissal. So, in view of this authority too the District Judge was right and legally justified in allowing the withdrawal of the suit with permission to bring another one. Next, the learned counsel for the plaintiff‑respondent cited a case reported in Bahadur Khan and others v. Sultan (P L D 1967 Lah. 531) wherein it was held that application to withdraw suit with permission to bring fresh suit on ground that there are some incorrect averments in the plaint with regard to history of case, allowed by the trial Court and the order permitting withdrawal of suit suffering from no defect of jurisdiction, revision was held not competent. This authority is also applicable to the facts of the present case. The learned counsel also cited Municipal Committee Chakwal v. Ch. Fateh Khan and others (P L D 1959 (W. P.) Lah. 535) wherein it has been laid down that a revision would be an irregular exercise of a jurisdiction vested in the Court, if the ground was of a kind which was within the purview of Order XXIII, rule

1. Then whether under the circumstances it was sufficient or not is not a matter into which a revisional Court is to go. Lastly the authority cited on behalf of the plaintiff‑respondent is a case reported in Muhammad Shafi v. Nawab and others (P L D 1957 (W. P.) Lah. 648) wherein it has been held as under "Appellate Court has power to allow withdrawal of suit with permission to bring a fresh suit. Held, that an appellate Court has power to allow withdrawal of a suit with permission to bring a fresh suit under Order XXIII, rule 1, Civil Procedure Code (V of 1908)."

6. The net result of the discussion already gone before is that the District Judge was competent to allow the application for the withdrawal of the suit by the plaintiff‑respondent, with permission to file a fresh suit on the same cause of action, and the learned counsel for the petitioner defendant has failed to rebut the above legal position by referring to any law on the point. As such, I hold that there is no force in this revision petition which is hereby dismissed, with costs. M. A. K. Petition dismissed.