P L D 1967 Lahore 531 (PLP)

Hakim Muhammad Sardar Khan for Petitioners. Syed Ghulam Abbas Jaffari for Respondent. Date of hearing: 1st December 1966. Sultan plaintiff respondent brought a suit for declaration to the effect that the sale of land, details of which appear in the plaint, by Mst. Allah Rakhi in favour of Muhammad Yusuf, Murid Hussain and Ali Gohar, petitioners Nos. 4 to 6, respectively, by a registered sale‑deed dated the 21st of January 1960, was opposed to custom and was void as against his reversionary interests. During the pendency of the suit, the alienor, Mst. Allah Rakhi, died. Her legal representatives (petitioners Nos. I to 3) were brought on the record and the suit was changed into one for declaration and possession by way of consequential relief. Originally the respondent had averred in the plaint that Mst. Allah Rakhi had succeeded to the property in dispute as widow of Ghulam Rasool, who died some thirty years back and the alienation made by her in favour of the aforesaid three peti tioners (Nos. 4 to 6) being without consideration and legal necessity was not binding on him and was void as against his reversionary interests. Subsequently, the respondent applied for amendment of the plaint so as to incorporate the fact that Ghulam Rasool, husband of Mst. Allah Rakhi, bad predeceased his father Lakhan, on whose demise the inheritance was mutated in favour of the respondent and Mst. Allah Rakhi half each under custom and that the last male‑holder in the case was Lakhan and not Ghulam Rasool. This application was resisted and the amendment was not allowed by the trial Court for the reason that there was direct conflict and an opposite case was now being sought and tried to be substituted. That order is not being assailed before me but I have the impression that the reasons given by the trial Court are untenable and by this erroneous order the Court refused to exercise jurisdiction vested in it. However, the very day the order was pronounced, namely, the 22nd of March 1961, an application was presented by Sultan respondent under Order XXIII, rule 1, C. P. C. to withdraw the suit with permission to bring a fresh one, saying that there were some formal defects and that there was some incorrect averment with regard to the history of the case. This petition has been allowed and the defendants‑petitioners have approached this Court by way of revision petition against the said order.

2. The main contention put forward on behalf of the petitioners is that the words "other sufficient grounds" appearing in clause (b) of sub‑rule (2) of Order XXIII, rule 1, C. P. C. should be read analogous to the words "some formal defect" in clause (a) of the said sub‑rule and since the grounds given for withdrawal are not in the nature of or analogous to a formal defect, the interpretation placed on the said words by the trial Court in permitting the respondent to withdraw from the suit with liberty to institute a fresh suit is incorrect. Learned counsel has traced the history of this provision of law and has invited my attention to the earliest authority on the subject, Watson v. Collector of Rajshahee (13 M I A 160) which came up for considera tion in Ramrao v. Babu Appanna (A I R 1940 Bom. 121). The relevant extracts of both the judgments are reproduced below "Watson v. Collector of Rajshahee: "There is a proceeding in those Courts called a non‑suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit, to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them." Ramrao v. Babu Appanna: "Before the Civil Procedure Code was enacted in 1859, suits were allowed to be withdrawn on certain recognized grounds, such as those mentioned in the leading case in 13 M I A

160. In that case their Lordships of the Privy Council laid down in effect that there was no power in the Courts in India, similar to that exercised by Courts of Equity or Common Law in England, to dismiss a suit with liberty for the plaintiff to bring afresh suit for the same matter, or to enter a non‑suit, and that such power of Indian Courts was limited to questions of form, as in the case (1) of misjoinder of parties, or of the matters in suit, (2) where a material document had been rejected for not having a proper stamp, and (3) if there had been an erroneous valuation of the subject‑matter of the suit." This question has been the subject of discussion in various other High Courts in British India and in a well‑considered judgment reported as Gurprit Singh v. Punjab Government (A I R 1946 Lah. 429) the learned Judges came to the conclusion that the words "other sufficient grounds" were not controlled by the words "formal defect" and that has been the view of this Court after that decision. Municipal Committee, Chakwal v. Fateh Khan (P L D 1959 Lah. 535) refers. A judgment of the Judicial Commissioner's Court, Peshawar, reported as Sharifa v. Niamatullah (P L D 1955 Pesh. 65) expressing the contrary view has been referred to by learned counsel for the peti tioners but I feel that the exposition of law as given in Gurprit Singh v. Punjab Government is the correct interpretation and the view expressed in Watson v. Collector of Rajshahee is no longer available because of the radical change in the relevant provisions brought in by amendments in the Code of Civil Procedure from time to time. Following with respect the dictum in Gurprit Singh I v. Punjab Government I hold that the withdrawal permitted suffers from no defect of jurisdiction. The revision petition In fails and is dismissed with costs. K. M. A. Revision dismissed.