P L D 1994 Lahore 249 (PLP)

Civil Procedure Code (V of 1908) ‑‑‑‑O. XXIII, R.1‑‑‑Request for conditional withdrawal of suit‑‑‑Trial Court refused such prayer‑‑‑Plaintiff's plea in withdrawing suit was that due to misjoinder or non‑joinder of parties, suit suffered from a formal defect, therefore, institution of new suit on same cause of action was sought‑‑‑Both parties had completed their evidence and case was ripe for decision when such application was filed‑‑‑Prayer for conditional withdrawal appeared to be an attempt for bye‑passing the whole exercise hereto undergone and to start afresh. presumably to plug in possible existing gaps, in evidence led so far‑‑‑Defect of non‑joinder/misjoinder of parties (as a ground for conditional withdrawal of suit) was not a formal defect‑‑‑Defects viz. non‑joinder/misjoinder of parties were curable by amendment to pleading by taking appropriate steps‑‑‑Revision was dismissed in circumstances. Aqal Hussain v. Muhammad Sadiq and 7 others 1986 CLC 1316; Thakur Pd. and another v. Rasool Bux and another AIR 1950 All. 489 and Atul Krushna Roy v. Raukishore Mohanty and others AIR 1956 Orissa 77 rel. Messrs Ilamuddin & Sons v. Asghar Ali and another 1970 SCMR 233 ORDER This is a petition, under section 115 of Civil P.C., for revision of a decision of the trial Court by which it declined to permit conditional withdrawal of the civil suit with liberty to re‑institute it, on the existing cause of action on account of certain formal defects in it. Plaintiffs were owners of an Ihata bearing 7 Marlas, situated at Kamonki in Tehsil and District Gujranwala. Defendant was alleged to have trespassed upon it and taken forcible possession of the Ihata from the plaintiffs. Suit was instituted on 10‑9‑1987. Defendant resisted the suit. A few preliminary objections were also taken by him. On merits, plaintiffs' ownership of the Ihata was denied and its ownership was claimed by the defendant. On 18‑6‑1988, the trial Court settled appropriate issues. Plaintiffs closed their affirmative evidence on 15‑3‑1990. Defendant concluded his evidence on 19‑3‑1991. Plaintiffs applied for producing additional evidence. Their application was dismissed by the trial Court on 2‑3‑1992. A revision filed from the above decision was dismissed on 3‑6‑1992. Another application for additional evidence filed by the plaintiffs failed on 20‑1‑1993. Meanwhile, an application for appointment of a local commissioner had also failed. Thereupon, a petition under Order XXIII, Rule 1 of Civil P.C. was filed by the plaintiffs for a conditional withdrawal of the suit for its re‑filing on the same cause of action. It was averred that their suit suffered from a defect of misjoinder/non joinder of parties, which was likely to entail its dismissal. Other defects were not particularized. The trial Court refused the relief of conditional withdrawal and dismissed the application. Plaintiffs preferred a revision from the order to the learned District Judge, Gujranwala. It was marked to a learned Additional District Judge, who on 20‑12‑1993 returned it for presentation in the competent jurisdiction. Thereupon, the revision petition was presented to this Court. Learned counsel argued that necessary conditions for permitting a conditional withdrawal of the suit under Order XXIII, rule 1 of Civil P.C. were clearly made out and the. trial Court failed to exercise its jurisdiction in accordance with law in refusing the relief. He relied upon the case of Messrs Ilamuddin & Sons v. Asghar Ali and another 1970 SCMR

233. It was a case of conditional withdrawal of civil suit allowed by the trial Court, decision whereof was not disturbed by the Supreme Court. Therefore, trial Court found it distinguishable. Instead, it relied upon a case decided by the High Court of Azad J&K reported as Aqal Hussain v. Muhammad Sadiq and 7 others 1986 CLC 1316 (AJ&K) which held that defect of misjoinder/non‑joinder of parties was curable by amendment to the pleadings and, therefore, it did not fall within the ambit of a "formal defect". As observed above, the suit was ripe for decision. Evidence of both sides was already concluded. Plaintiffs application for additional evidence was dismissed in the trial Court and upon revision, the decision was not upset. Therefore, a serious question for consideration by this. Court would be, whether it was a legitimate exercise of discretionary jurisdiction to undo the whole exercise for a trial de novo of the suit entailing much trouble and expense or to leave the matter for decision by the trial Court in its judicial wisdom for correcting the curable errors of procedure, and in the event of failure, allow the plaintiffs to agitate its order in appeal from the final judgment. The defendant objected to the maintainability of the suit on account of misjoinder/non‑joinder of parties right in the start and an issue was also framed on it. From 1987 to the date of application for conditional withdrawal, the plaintiffs never bothered for correction of the alleged error in their suit and meanwhile, both parties gave their complete evidence. Applications for taking additional evidence were also dismissed in the trial Court. A revision preferred in the District Court also failed. Prayer for a conditional withdrawal appeared to be an attempt for by passing the whole exercise hereto undergone and to start afresh, presumably, to plug in the possible existing gaps in the evidence led so far. In the case from Azad Jammu & Kashmir, it was held that defect of non‑joinder/misjoinder of parties was not a formal defect. In Thakur Pd. and another v. Rasool Bux and another AIR (37) 1950 Allahabad 489, it was observed that misjoinder of parties or causes of action were defects of a formal nature. Similar views were expressed in Atul Krushna Roy v. Raukishore Mohanty and others AIR 1956 Orissa

77. However, in presence of an existing alternate remedy of appeal and revision from the final judgment of the trial Court in which it shall surely express itself on the pointed out defects of misjoinder/non‑joinder of parties and also the powers conferred on the Court of appeal under section 107(2) of Civil P.C., it shall not be an equitable exercise of discretionary jurisdiction to interfere with the impugned order. It may also be apt to observe that the pointed out defects were curable by amendment to the pleading by taking appropriate steps. Therefore, I shall prefer to observe restraint in exercise of revisional jurisdiction for allowing the matter to travel in the normal civil hierarchy. Revision petition is accordingly dismissed in limine. Records shall be returned to the trial Court. AA./A‑560/L Revision dismissed.