P L D 1999 Lahore 438 (PLP)
ABDUL MANAN and another — Petitioners Versus MUHAMMAD IBRAHIM and 2 others — Respondents
| Citation | P L D 1999 Lahore 438 (PLP) |
| Forum / Court | High Court |
| Bench Members | N/A |
| Parties | ABDUL MANAN and another — Petitioners Versus MUHAMMAD IBRAHIM and 2 others — Respondents |
| Primary Law | (b) Civil Procedure Code (V of 1908), (a) Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in P L D 1999 Lahore 438 (PLP)?
This judgment primarily cites: (b) Civil Procedure Code (V of 1908), (a) Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1999 Lahore 438 (PLP)?
The case was heard and decided by the High Court bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1999 Lahore 438 (PLP) (ABDUL MANAN and another — Petitioners Versus MUHAMMAD IBRAHIM and 2 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Mian Nisar Ahmad for Petitioners(Malik Muhammad Qayyum, J) Nemo for Respondents.
- 3. Mian Nisar Ahmad, Advocate has contended that neither in the application nor in the impugned
Headnotes / Summary
0. XXIII, R.1(2)
Withdrawal of suit with permission to file fresh one--Scope
When the Court comes to conclusion that the suit is likely to fail on account of a formal defect or other cause of like nature, only then permission to withdraw and to file fresh can be granted by the Trial Court
Application for such permission must specify formal defect
Generalised statement for such permission is not sufficient
Suit can be withdrawn as of right with permission to file a fresh suit under the provision of O.XXIII, R.1(2), C.P.C.
0. XXIII, R.1(2)
Withdrawal of suit with permission to file fresh.one--Non-mentioning of the specific formal defect in application for withdrawal of the suit
Lower Appellate Court did not give any reason for grant of such permission
Order of the Lower Appellate Court -vas set aside and the case was remanded to the Court for decision afresh on application under OXXIII, R.1, C.P.C.
Judgment & Decree
The respondents filed a suit for a declaration to the effect that they are the legal heirs of Janat Bibi daughter of Habib Ullah and as such entitled to her inheritance and that the defendants-petitioners have no right, title or interest in the same. Mutation No. 1094 sanctioned on 19-8-1979 was also challenged as being illegal and void. The suit was contested by the petitioners by filing written statement which led to framing of as many as 11 issues on which the parties went to trial. The learned Civil Judge by means of his judgment and decree dated 29-1-1983 dismissed the suit of the respondents.
2. Aggrieved respondents filed an appeal during the pendency of which the petitioners filed cross-objections. However, before the matter could be decided on merits an application was moved by the respondents for permission to withdraw the appeal as well as the suit and to institute a fresh suit. The learned Additional District Judge by means of his impugned order dated 27-5-1985 allowed the suit as well as the appeal to be withdrawn and permission was. granted to file a fresh suit subject to payment of Rs.1,000 as costs. The cross objections filed by the petitioners were also dismissed.
3. Mian Nisar Ahmad, Advocate has contended that neither in the application nor in the impugned order was any formal defect in the suit spelt out and as such lower appellate Court acted in excess of jurisdiction in granting permission to institute a fresh suit while allowing withdrawal.
4. This contention of the learned counsel has force. A perusal of Order XXIII, Rule 1(2) Code of Civil Procedure clearly shows that under sub rule (2) of Order XXIII the suit cannot be withdrawn as of right with permission to file a fresh suit. It is only when the Court comes to the conclusion that the suit is, likely to fail on account of a formal defect or other cause of the like nature that permission to withdraw the suit and to file a fresh suit can be granted by the trial Court. The application moved and the order passed in that behalf must specify formal defect due to which the suit was liable to fail and a generalised statement was not sufficient. It is so held by this Court in Town Committee Depalpur v. Ahmad Din and others PLD 1972 Lah. 290.
5. A perusal of the application in the present case shows that there was only a bald assertion that the suit suffers from defects-. The learned Additional District Judge did not at all adverted to this aspect of the case and no reason whatsoever was given nor was the cause due to which the suit was liable to fail has been mentioned. The impugned order shows no application of mind to this aspect at all. In view of the above, this petition is allowed, impugned order of learned Additional District Judge is set aside. Both the suit as well as the appeal shall be deemed to be pending before the learned lower appellate Court and shall E be decided afresh. No order as to costs. Q. M.I-I./A-112/L?????? Revision allowed.