P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

This revision, petition ,is directed against the order, dated the 22nd of August 1956, of Ch. Bashir Ahmad, Civil Judge, 2nd Class, Mandi Baha‑ud -Din, whereby he had allowed the plaintiffs to withdraw from the suit with liberty to file afresh suit. The suit out of which this petition has arisen was instituted on the 2nd of February 1955, by Ata Muhammad. Bashir Ahmad and Abdul Ghani, plaintiffs‑respondents Nos. 1 to 3 against Muhammad Din petitioner and Muhammad Shafi respondent No.

4. The plaintiffs and the defendants are the sons of Nabi Bakhsh who had two wives, namely, Mst. Begum Bibi and Mst, Fateh Bibi. The plaintiffs are his sons by Mst. Begum Bibi and the defendants are his sons by Mst. Fateh Bibi. It was alleged by the plaintiffs that the land specified in the plaint originally belonged to Noor Din, their maternal grandfather, who 'had bequeathed it to their mother, Mst. Begum Bibi. The will had been registered on the 7th of July 1924. Thereafter, the mutation in favour of Mst. Begum Bibi was sanctioned on the 21st of. December 1924. On the 14th of September 1927, Mst. Begum Bibi had made a gift of this land in favour of her husband, Nabi Bakhsh, on the condition that on his death her children would become its owners. After the death of Mst. Begum Bibi, Nabi Bakhsh, in deference to the wishes of her deceased wife, had made a will in respect of this land on the 23rd of January 1939, in favour of the plaintiffs. This will was registered on the 3rd of February 1939. Nabi Bakhsh died on the 31st of July 1946, and in accordance with the will, mutation was sanctioned on the 25th of June 1950. According to the terms of this will, some land which had been inherited by Nabi Bakhsh from his father had been given exclusively to the defendants. On the 8th of March 1951, Muhammad Shafi respondent brought a declaratory suit on the basis of this very will and obtained a decree. Muhammad Din petitioner was also a party to that suit. Later on, a dispute appears to have arisen between the parties in respect of the land in suit. Hence the plaintiffs filed the present suit on the basis of the will of Nabi Bakhsh for a declaration that they were its exclusive owners. As as a portion of this land was in possession of the defendants, they also prayed for its restoration. The suit was contested by Muhammad Din defendant alone, and the nature of the pleas raised by him is reflected in the issues settled by the trial Court which are as follows :‑ (1) Whether the will dated 23rd January 1939, is invalid and inoperative ? (2) Whether the defendant Muhammad Din had admitted the correctness of will and with what effect ? (3) Whether the father of the parties had exchanged Khasra No. 2752/393 with Khasra No. 402 ? (4) Whether the plaintiff's suit is mala fide, and with what effect ? (5) What is the effect of not joining the whole of ‑land mentioned in the will in this suit ? (6) Whether Mohabatti, Rasulan and Bahawl are necessary parties, and what is the effect of not impleading them as defendants ? (7) Whether the plaintiffs are estopped by their conduct to bring this suit (8) Relief. The plaintiffs produced some witnesses in support of their claim and also produced certain documents. No witnesses were called on behalf of the defendants but some documents were produced on their behalf. The evidence of the parties was closed on the 8th of March 1956. Thereafter, the case was transferred to another Court and was then sent to the Court of Ch. Bashir Ahmad. He fixed 21st August 1956, for arguments, but on that date the plaintiffs put in an application that they may be allowed to withdraw from the suit with permission to file a fresh suit in respect of the same subject‑matter as there were certain formal defects, the main defect being that they had, by mistake, omitted to mention in the plaint that they were governed by custom. The Court held it to be a formal defect and granted permission to withdraw from the suit with permission to file a fresh suit on the condition that they should pay the costs of this suit to the defendants. It is against this order that Muhammad Din defendant has come up in revision to this Court. The main contention raised by the learned counsel for the petitioner is that the alleged defect on the basis of which the plaintiffs have been allowed to withdraw from the suit is not a formal defect and as such permission to withdraw from the suit with liberty to file a fresh suit should not have been granted. It was argued that the Court had acted illegally and with material irregularity in the exercise of its jurisdiction and, therefore, the order should be set aside. The relevant provision of law under which permission is granted to withdraw from the suit with liberty to file a fresh suit is contained in sub‑rule (2) of rule 1 of Order XXIII of the Civil P. C. which, for facility of reference, is reproduced below:‑-- "(2) Where the Court is satisfied‑ (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject‑matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject‑matter of such suit or such part of a claim". In order to determine whether the defect on the basis of which permission was granted to withdraw from the suit with liberty to file a fresh suit is a formal defect or not, it is necessary to find out the scope of the expression "formal defect" used in this sub‑rule. The expression "formal defect" has not been defined anywhere in the Code of Civil Procedure, but its plain meaning appears to be that the defect should be only in point of form of the suit. It appears to connote every kind of defect which does not affect the merits of the case. Misjoinder of causes of action, erroneous valuation of the subject‑matter of a suit, a material document not being properly stamped or registered, filing of a suit not in compliance with Order II, rule 2, Civil P. C. have all been held to be formal defects in the authorities summarised in Mulla's Civil P. C., 12th Edition, at page

970. In Ramrao v. Babu Appanna (A I R 1940 Bom. 121) a Full Bench of the Bombay High Court, while interpreting clauses (a) and (b) of sub‑rule (2) observed as follows :‑-- "To determine what grounds are analogous to formal defects, it is necessary to know what defects are to be deemed 'formal'. The instances of defects `of form' cited by the Privy Council in 13 M. I. A. 160 include misjoinder of parties or of the matters in suit, rejection of a material document for not having a proper stamp and the erroneous valuation of the subject‑matter of the suit. This shows that the expression 'formal defect' must be given a wide and liberal meaning, and must be deemed to connote every' kind of defect which does not affect the merits of the case, whether that defect be fatal to the suit or not". In Venkataramayya v. Veraswami (A I R 1925 Mad. 617) Jackson. J. on the facts of that case, observed that "the 'defect' of alleging Rajayya to be the father or Subarayudu instead of Venkayya was not a formal defect ; it went to the root of plaintiff's claim." It is, therefore, clear that if the defect is only in the form of a suit then alone it is a formal defect, but if the defect is a material and substantial defect and affects the merits of the case or goes to the root of the claim it cannot be held to be a formal defect within the scope of sub‑clause (a) of sub‑rule (2) of rule 1 of Order XXIII, Civil P. C. In the in stant case, if the plaintiffs wished to rely on custom in support of the validity of the will executed by Nabi Bakhsh they should have specifically based their claim on it. It was held by a Division Bench of the Lahore High Court in 19bal Singh v. Jasmer Singh (A I R 1934 Lah. 296) that‑ "Section 5; Punjab Laws Act, provides that custom in the Punjab is the first rule of decision in all questions specified therein. But it is nowhere laid down that a presumption arises in favour of the existence of custom to the exclusion of the personal law. The section merely prescribes that custom shall govern the parties in certain matters in the first instance, but it is for the person relying upon a rule of custom contrary to his personal law to allege and prove it. In support of his allegation he may rely upon an entry in the riwaj‑i‑am, applicable to the members of his tribe residing in a local area, and in that case the presumption may arise in favour of the existence of custom and the onus is then thrown on the opposite party to rebut it. But whether he invokes a presumption in favour of custom or produces evidence to prove it, the fact remains that he has to assert and prove its existence.; and that only when it is established, it is to be adopted as the rule of decision in supersession of the personal law". In my opinion, the omission to mention in the plaint the fact that the parties were governed by custom is not a formal defect within the meaning of sub‑clause (a) of sub‑rule (2). Learned counsel for the plaintiffs‑respondents, however, maintained that if clause (a) was not applicable then, in the circumstances of the case, clause (b) of sub‑rule (2) was fully applicable, and as permission has been granted to withdraw from the suit with liberty to file a fresh suit, it was a case in which this Court should not exercise its revisional jurisdiction under section 115 of the Code of Civil Procedure and the order should not be set aside. Clause (a) provides that where the Court is satisfied that there are "other sufficient grounds" for allowing the plaintiff to institute a fresh suit for the same subject‑matter, the Court may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit with liberty to institute a fresh suit in respect of the subject‑matter of such suit. It is, therefore, necessary to find out whether there were "other sufficient grounds" for granting the necessary permission. Learned counsel for the petitioner argued that the defect involved in this suit being of a substantial nature the case is not even covered by clause (b), because, he maintained, that the words "other sufficient grounds" mentioned in clause (ii) are ejusdem generis with the defect referred to in clause (a). In support of his contention, he relied upon Tikai Chobay v. Sheo Dayal Ramji Das (107 I C 887) where a Division Bench of the Oudh Chief Court held that "other sufficient grounds" referred to in clause (b) of Order XXIII, rule 1 (2), Civil P. C. must be grounds ejusdem generis with the grounds mentioned in clause (a). He also relied on the case of Ramrao v. Babu Appanna referred to above, where it was held that although the grounds need not be ejusdem generis with the grounds mentioned in clause (a) they must be at least analogous to it. In Buta Singh v. Hardit Singh (A I R 1930 Lah.175) Tek Chand, J. observed that "it is now settled law that 'other sufficient grounds' for the purposes of clause 2 (b), rule 1, must be ejusdem generis with the 'formal defect' mentioned in clause (a)." To the same effect is Mst. Fatima v. Nura (A I R 1938 Lah. 294). Learned counsel for the plaintiffs respondents, however, argued that neither the ejusdem generis rule applies nor it is necessary that "other sufficient grounds' should be analogous to the grounds mentioned in clause (a). In support of this view, he cited Kali Ram v. Dharman (147 I C 441) where a Division Bench of the Allahabad High Court held that under Order XXIII, rule 1 (2), Civil P. C., the Court has authority to pass an order upon any grounds which appear to the Court to be sufficient grounds, whether they are in the nature of formal defects or not. He also relied on a Division Bench ruling of the Lahore High Court as Gurprit Singh v. Punjab Government (A I R 1946 Lah. 429) where Din Muhammad, J. with whom Muhammad Sharif, J. agreed, reviewed all the important authorities bearing on the subject of the various High Courts and observed: "Here, the 'formal defect' is provided for in clause (a) of sub‑rule (2) and other sufficient grounds' in clause (b) of the same rule. If it was intended by the Legislature that the sufficient grounds contemplated in this rule be also ejusdem generis with 'formal defect' they could easily have enacted both the provisions in one sub‑rule. As I read the provision, the words 'other sufficient grounds' are much wider in signification and can cover all those cases which appear to Court as affording such grounds. For the same reason. I consider that the Full Bench decision reported as I L R 1940 Born. 299 in observing that the grounds must be analogous to the formal defect places a restrictive meaning on this provision, even though it rightly holds that the grounds may not be ejusdem generis with those words." In the face of this clear exposition of law by a Division Bench of the Lahore High Court by which I am bound, it is unnecessary to dilate upon this point any further. Suffice it to say that with great respect I am in entire agreement with the principle laid down in this ruling. There appears to be no justification to place any restricted meanings on the words "other sufficient, grounds" used in clause (b), The plain words of this clause invest the Court with wide powers which, of course, have to be exercised judicially and not arbitrarily. I have no doubt in my mind that whereas clause (a) of sub‑rule (2) of rule 1 of Order XXIII. Civil P. C. applies only when the Court is satisfied that a suit must fail by reason of some formal defect, clause (b) would apply irrespective of the fact whether the suit is likely to fail or not. The only condition for its application is that the Court shall be satisfied that there are sufficient grounds for allowing the plaintiff to withdraw from the suit with liberty to file a fresh suit in respect of the subject‑matter of such suit, and such grounds need not be ejusdem generis to the ground mentioned in clause (a) nor they need be analogous to it. As to what grounds should be considered sufficient in a case for the application of clause (b) has been left entirely to the discretion of the Court and this discretion has not been fettered in any manner. The question, therefore, arises whether in the present case there were "other sufficient grounds" for granting permission to the plaintiffs‑respondents to withdraw from the suit with liberty to institute a fresh suit. The parties are Jat Gondals by caste which is a notified agricultural tribe in the District of Gujrat. According to the riwaj‑i‑am of the District, when the Jats of the District were consulted, they had stated that they were governed by custom. Prima facie, it appears that the parties are governed by custom. The plaintiffs, therefore, should have asserted it in the plaint in support of the validity of the will, but somehow they omitted to mention it. The plaint is silent on the point whether the parties were governed by custom or by Muslim Law. The defendants also did not specify in their written statement the ground on the basis of which the validity of the will was challenged: whether it was based on custom or was in contravention of the, provisions of Muslim Law. The plaint appears to have been badly drafted. It was the duty of the counsel to have enquired from the plaintiffs whether they wished to base their claim as regards the validity of the will on the basis of custom or Muslim Law, and should have accordingly incorporated it in the plaint. It appears that the omission in the plaint of the fact that the parties were governed by custom was not intentional. In the absence of such an allegation in the plaint, the plaintiffs ran a grave risk of being non‑suited. The suit relates to more than 130 Kanals of land which originally belonged to their maternal grandfather. The fact cannot be lost sight of that Muhammad Shafi defendant who is the real brother of the petitioner had already obtained a decree on the basis of this very will in a previous suit which he had instituted in the year 1951. In these circumstances, I think the plaintiffs should not be made to suffer for the negligence of their counsel in not drafting a proper plaint. I feel satisfied that there were sufficient grounds within the scope of clause (b) of sub‑rule (2) of rule 1 of Order XXIII Civil P. C. to permit the plaintiffs to withdraw from the suit with liberty to file a fresh suit in respect of the same subject matter. It now remains to be considered whether in the peculiar circumstances of the case this Court should set aside the order in the exercise of its revisional jurisdiction under section 115, Civil P. C. After a careful consideration of the matter, I have arrived at the conclusion that the order should not be set aside because, in my opinion, it has not resulted in miscarriage of justice. For the reasons given above, I am of the view that the operative part of the order permitting the plaintiffs to withdraw from the suit with liberty to institute a fresh suit is unassailable and f should have been passed in the interest of justice. It is only the basis of the order which is questionable. If the lower Court had seriously applied its mind to this aspect of the case, it would not have treated the defect as a formal defect, but would have held it to be a sufficient ground within the scope of clause (b) for granting the necessary permission. If the order were to be set aside on account of this objection, this Court would be giving effect to a technical objection at the expense of manifest justice. This I am not prepared to do. Section 115 of the Code of Civil Procedure gives a discretionary power to the High Court to interfere or not. In my opinion the order in effect has resulted in promoting the ends of justice. I, therefore, refuse to set aside the impugned order and dismiss this petition. The parties are left to bear their own costs. K. M. A. Petition dismissed.