1991 PLP 859 (MLD)

M. Riaz Inqalabi for Appellant. Raja Muhammad Siddique Khan for Respondents. Muhammad Iqbal brought a suit for declaration in respect of Plot No.166, measuring 5 Marlas, situate in Sector E-4, Mirpur City. It was averred that plot in dispute was allotted to Abdul Ghafoor who appointed Shah Nawaz as his attorney by authorising him to transfer the plot to any person. The plaintiff purchased the plot in question from Abdul Ghafoor, allottee through Shah Nawaz, his attorney, for a sum of Rs.40,

000. The agreement to sell was executed on January 18, 1988. The plaintiff acquired possession of the plot at the time of execution of agreement to sell. Lai and Abdul Ghafoor, defendants were trying to eject the plaintiff forcibly, as such, he felt constrained to bring an action against them. He further prayed that the defendants may be directed not to secure transfer of proprietary rights in their favour from the allotting authorities. The suit was instituted on January 30, 1988. The defendants denied the claim of the plaintiff and sought dismissal of the suit for its having been instituted in violation to the spirit of provisions of section 42 of the Specific Relief Act. The trial Court dismissed the suit for want of notice to the Municipal Committee under the provisions of Local Government Ordinance, 1988 and the suit being defective on account of non-compliance with the provisions of section 42 of the Specific Relief Act. On appeal, the learned District Judge reversed the finding on issue No.5 relating to want of notice but concurred with the finding of the trial Court on issues No. 6 and 7.

2. An application was moved on behalf of the plaintiff-appellant seeking amendment in the plaint to modify the term `ownership' and to substitute it by the word `purchased'. It was further prayed that the plaintiff may be permitted to seek consequential relief, in the shape of issuing direction to defendant No.2 for specific performance of the agreement. The application was opposed by tile contesting respondents. Today, a fresh application has been moved under Order 23, Rule 1, C.P.C., for permission to withdraw the suit, to bring fresh suit to remove the formal defect in the suit under consideration. The application is opposed by the respondents. In presence; of the fresh application for permission to withdraw the suit, the application for amendment is not pressed.

3. In view of the aforesaid development, the appeal is to be disposed of in the light of latest application. Rule 1, Order 23, C.P.C. provides a scheme of procedure for withdrawal of suit or abandonment of part of a claim. Under sub-rule (1) of Rule 1, it is postulated that 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, the Court 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. The presence of either or both of the aforesaid factors empowers the Court to permit withdrawal of suit, in order to bring fresh suit in respect of subject-matter under consideration or part of a claim, provided the Court was satisfied that in its opinion, the suit instituted by the plaintiff must fail by reason of some formal defect or other sufficient grounds.

4. The term `formal defect' has not been defined in the Code. On different occasions, Courts construed the term `formal defect' liberally and in presence of any technical ground likely to cause dismissal of suit, deemed it expedient to allow withdrawal. No hard and fast rule was enunciated. Likewise, the term `sufficient grounds' was construed beneficially so as to allow withdrawal of suit provided no vested right of opposite part was likely to suffer. In Muhammad Rahim's case P L D 1983 Pesh. 115, the plaintiff omitted to challenge the execution of sale-deed made in favour of respondent as fraudulent and fictitious transaction. The suit was dismissed by the trial Court. On appeal before the District Judge, he moved an application for permission to withdraw the suit, in order to bring fresh suit, to seek setting aside and cancellation of sale-deed relating to the subject of dispute. It was averred that unless permission was granted to bring fresh suit, his suit was likely to suffer on account of aforesaid formal defect. Necessary permission was granted at the stage of appeal. The revision addressed against the aforesaid order of the learned District Judge was dismissed by the learned Judge of the High Court as, in his view, pleadings of plaintiff suffered from a formal defect. Therefore, his suit was likely to fail unless he was permitted to withdraw his suit, to file a fresh suit. The relevant finding is reproduced:-- "... A perusal of the written-statement riled 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. 336 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." In Gurprit Singh's case A I R 1946 Lah. 429 Mr. Justice Late Din Muhammad, in his celebrated judgment permitted the plaintiff to withdraw his suit on account of formal defect, in order to bring fresh suit in respect of the same subject-matter. In that case, the counsel failed to draft a proper plaint by omitting to make certain claim and ask for proper reliefs in respect of property in dispute. At the stage of second appeal, an application was moved on behalf of the plaintiff to permit him to withdraw the suit, in order to bring fresh suit as in absence of fresh spit, he was likely to suffer in the manner of dismissal of suit. The learned Judge observed:-- ... Words `other sufficient grounds' in R.I. (2) (b) are not ejusdem generis with `formal defect'... The words `other sufficient grounds' are much wider in signification and can cover all those cases which appear to Court as affording such grounds. Where the plaintiffs were running a very great risk of losing a very valuable estate merely for the blunder of their counsel in not drafting a proper plaint and not claiming proper reliefs: Held, that it was a fit case to grant the plaintiffs the necessary leave to withdraw from the suit with liberty to institute a fresh suit in respect of the same subject-matter even at the stage of appeal." The aforesaid authorities provide a guidance to allow withdrawal of suits on the satisfaction that unless withdrawal of suit was permitted in order to bring afresh suit, plaintiff was likely to suffer heavy loss of his property on account of omission, mistake or blunder committed by his counsel for lack of aptitude or experience.

5. It is noticed that in this case, the alleged claim of plaintiff rests on the documents, `agreement to sell', purported to be executed through attorney. The power of attorney was disputed by defendant for its being fake and fictitious. Moreover, the defendant raised a specific plea that the suit was not maintainable as it was not instituted within the framework of section 42 of the Specific Relief Act. It is also evident from the written-statement that the allottee of the plot acquired proprietary rights in becomes necessary for the plaintiff to ask for specific performance of the agreement, purported to be executed by allottee-Defendant. Unless he is allowed withdrawal of suit and to bring fresh suit by asking for necessary reliefs against the defendants, he was not likely to succeed in the case. The subject-matter is a plot of land in Mirpur City. It is ostensibly of a considerable value. Therefore, it was expedient to allow the application, to avoid any likelihood of loss of vested right of plaintiff in the subject of dispute. This, of course, shall not deprive the defendants to raise their defences against the fresh suit, including the defence already raised in the present suit. Necessary permission is, therefore, granted subject to payment of Rs.500 as costs. The orders of the subordinate Courts are set aside and the appeal is disposed of accordingly. AA./435/H.C.A. Order accordingly.