P L D 2026 Balochistan 57 (PLP)

MUHAMMAD NAJAM-UD-DIN MENGAL, J.

This judgement disposes of Constitutional Petition No. (T)32 of 2024, filed by the petitioner Ghulam Sarwar, against the Order dated 30 November 2023 passed by learned Qazi Tump (hereinafter referred as, "the trial Court"), whereby the application under Order XXIII, Rules 1 and 2 C.P.C. for conditional withdrawal of suit with permission to file a fresh one, was accepted and against the Order dated 31st January 2024 passed by learned Majlis-e-Shoora Turbat (hereinafter referred as "the revisional Court", whereby the Civil Revision Petition filed by the petitioner was dismissed by maintaining the Order of trial Court.

2. Facts of the case are that the respondents (plaintiffs) filed a suit for declaration, permanent injunction and restraining from illegal interference over suit land situated at Dap Daur Kallag Tagran before the learned trial Court, which suit was contested by the petitioner (defendant) by filing his written statement, wherein he repudiated the claim of the respondents (plaintiffs).

3. During pendency of suit, the respondents (defendants) filed an application within the meaning of Order XXIII, Rules 1 and 2 C.P.C. for withdrawal of the suit with permission to file a fresh one, hence the said application was contested through rejoinder, however, after hearing arguments, the learned trial Court accepted/allowed the said application subject to all just exception and with payment of cost of Rs.3000/-, vide impugned Order dated 30th November 2023. Thus, the petitioner filed a Civil Revision Petition before the learned revisional Court, but the same was dismissed, vide Order dated 31st January 2024. Whereafter, the petitioner (defendant) has invoked the writ jurisdiction of this Court.

4. Learned counsel for petitioner (defendant) argued that the concurrent findings of the Courts below are perverse and contrary to law and facts; that both the Court below while delivering the impugned Orders have failed to interpret the relevant provisions of law, thus arrived at a conclusion, which is against the spirit of Order XXIII, Rules 1 and 2 C.P.C.; that the minor defects can be cured by means of amendments as provided under Order VI, Rule 17, C.P.C., thus there was no need to withdraw the suit, that the ingredients of Order XXIII, Rules 1 and 2, C.P.C. are lacking, as the respondents (defendants) have failed to point out any formal defect or sufficient cause to establish a case for conditional withdrawal of suit, but despite the same the withdrawal application was accepted, thus both the impugned Orders of Courts below require interference of this Court.

5. Learned counsel for respondents (plaintiffs) strongly opposed the contentions of the learned counsel for petitioner (defendant) and while supporting the concurrent findings of the Courts below stated that both the Courts below have delivered the impugned Orders in accordance with law, that the provisions of Order XXIII Rules 1 and 2, C.P.C. envisages right to a litigant to withdraw the pending suit, if necessary under the circumstances of the case, thus the learned trial Court rightly exercised its powers under Order XXIII, Rules 1 and 2, C.P.C. by allowing the withdrawal of suit with the permission to file a fresh once and during arguments before the Revisional Court the learned Counsel for petitioner has failed to point out any illegality or irregularity in the impugned Order of the trial Court, thus rightly the revision petition was dismissed; that well-reasoned Orders have been delivered by both the Courts below and the learned counsel for petitioner has failed to point out any material illegality or irregularity or jurisdictional defect in the impugned Orders, that the case is at initial stage and no prejudice would be caused to the petitioner, if the suit is withdrawn and fresh suit is filed, thus prayed for dismissal of petition.

6. Heard the learned Counsel for parties and with their valuable assistance minutely perused the available record. The moot question involved in the matter pertains to interpretation of Order XXIII, Rules 1 and 2, C.P.C., thus for facilitation the same is reproduced herein below: "

1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied after recording reasons- (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. (3) Where the plaintiff withdraws from a suit or abandons part of a claim without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others."

7. The above cited provision of law clearly manifests that the instituted suit can be withdraw by the plaintiff and with the permission of the Court, he can file a fresh suit, but subject to some condition that the plaintiff has to show sufficient causes for conditional withdrawal of the suit or any formal defect, which may fail the suit. Now question arises that what are the conditions that not only allow a plaintiff to withdraw the pending suit, but also to file a fresh suit. Sub-Rule (a) of Rule (1) of ibid Rules permits the plaintiff to withdraw his suit or abandon any part of his claim and such permission has been granted to the plaintiff to withdraw his suit at any time and even during pendency of suit or appeal or at revisional stage before the High Court, subject to the condition that there are reasonable ground appearing on the face of record that due to any formal defect the suit must fail or there are sufficient grounds to believe that such defects cannot be removed through amendment as provided under Order VI, Rule 17, C.P.C. However, it is necessary for the plaintiff that whilst filing application under the provisions of Order XXIII, Rules 1 and 2, C.P.C. for withdrawal of suit with the permission to file fresh one, the plaintiff shall mention in detail the un-curable defects in the suit or any other sufficient ground to believe that only a fresh suit is the remedy to repair the damage or defect, otherwise the suit must fail. It has been established that there is no pressure or force upon the plaintiffs to proceed with the case at all conditions rather during pendency of proceedings of suit before the trial Court or at appellate stage when it appears that the suit must fail due to any formal defect, the plaintiff is at liberty to abandon any part of his claim or to withdraw the suit partly or entirely against all or any of the defendants.

8. As discussed in the preceding para that the suit can be withdrawn, when there appears any formal defect that fails the suit, hence we have perused the application under Order XXIII, Rules 1 and 2, C.P.C. filed by the respondents (plaintiffs) before the trial Court, wherein the plaintiffs have simply mentioned that, "...the suit has been instituted without adding over the foremost material, facts, necessary parties, and these defect are not removable through amendments except filing a fresh". The plaintiffs have not disclosed in detail a formal defect or any other sufficient ground as required under the provisions of Order XXIII, Rules 1 and 2, C.P.C. for conditional withdrawal of the suit. The reasons so mentioned for conditional withdrawal of the suit do not amount to a formal defect or any other sufficient ground for conditional withdrawal of the suit. The plaintiffs ought to have mentioned justifiable grounds for conditional withdrawal of the suit. The specific requirements necessary for withdrawal and filing a fresh suit is lacking, because the formal defect is a defect which may be of technical in nature and can be cured through fresh suit. The main object of Sub-rule (2) of Order XXIII, C.P.C. is to prevent the defeating of ends of justice on account of technicalities. The plaintiffs must have mentioned in his application the defects that the suit property has not been properly valued or the description whereof were wrongly mentioned or necessary cause of action has not been mentioned or the mention of necessary and material documents are not mentioned in the plaint, upon which the entire case revolves or that the said documents were not properly stamped etc. Such are few examples of formal defects, on the basis of same a withdrawal of suit can be permitted with permission to file a fresh one, but the application so submitted by the plaintiffs are silent with regard to any of the defect that must fail the suit. Mere mentioning of general grounds are not enough to allow the parties to withdraw the suit conditionally and to institute a fresh suit rather the plaintiffs ought to have mentioned sufficient cause for doing such act. The Hon'ble Supreme Court in the case of Sardar Muhammad Kazim Ziauddin Durrani and ohters v. Sardar Muhammad Asim Fakhuruddin Durrani and others, 2001 SCMR 148, wherein the formal defect has been discussed in the following manner: "

8. We have carefully noted the contents of application to know whether the suit was suffering from "formal defects" or otherwise, and their removal has become essential to save it from failure. It is noteworthy that under Order XXIII, rule 1, sub-rule (2) law has foreseen two situations, i.e. incorporated in clauses (a) and (b) warranting withdrawal of suit. In the instant case petitioners have prayed for relief in view of clause (a) which deals with the failure of the suit due to "formal defect". Under C.P.C. expression "formal defect" has not been defined anywhere. As such, we have to refer to its meaning as per dictionary which reads as under:-- "The want or absence of some legal requisite; deficiency; imperfection; insufficiency. The want or absence of something necessary for completeness or perfection; a lack or absence of something essential to completeness; a deficiency in something essential to the proper use for the purpose for which a thing is to be used (Black's Law Dictionary, Vth Edition, page 376). From perusal of above meaning of the word "defect" conveniently it can be visualized with reference to a suit framed under the C.P.C. that if it is not arranged in accordance with Order VI, Rules 1 to 4, 14, 15 or Order VII, Rules 1 to 7, C.P.C. then it would be deemed that suit suffers from defect. However, such defect itself shall not be sufficient to grant permission to withdraw the suit unless it is not shown that for any one of formal defects the suit is likely to fail, which mean that the nature of the defect must be apparent but not latent because as far as former category of defect is concerned, it is visible and is not liable to be explored after an inquiry, because if there is procedural departures in the form or arrangement of the suit obviously it would be apparent and if there is substantial defect in the suit, it would fall under the latter category which can only be unearthed after recording of evidence. Therefore, permission can only be granted to remove a defect, which is apparent or formal and its presence in the suit may fail it, but if it is latent and touches merits of the case, then permission to withdraw the suit on this score cannot be granted. Reference in forming this opinion is placed on the cases of Muhammad Din v. Atta Muhammad and others (PLD 1957 (WP) Lahore 971), Ahmad Bakhsh v. Allah Bakhsh and another (PLD 1962 (W.P.) Lahore 476), Aqil Hussain v. Muhammad Sadiq and 7 others (1986 CLC 1316) and Ahmad Din and 3 others v. Town Committee, Depalpur (1972 SCMR 203)."

9. Having gone through the relevant provision of law and the consistent view of the Hon'ble Supreme Court, we have no hesitation to hold that the plaintiffs can only be allowed to withdraw their suit or abandon part of their claim if they succeed to establish that suit must fail by reason of some formal defect, but admittedly the plaintiffs have failed to disclose some formal defect leading to failure of suit. The Courts below have failed to consider that conditional withdrawal of the suit cannot be allowed in a mechanical and haphazard manner and the Court is duty bound to examine the contents of the application seeking such permission. From the perusal of the application moved by the plaintiffs it is crystal clear that the same is bereft of any content disclosing formal defect in the plaint.

10. The concurrent findings of Courts below by allowing the application for conditional withdrawal of the suit by the trial Court and maintaining the same by the revisional Court are against the object of Order XXIII, C.P.C., because such permission can only be granted due to some formal defect or sufficient causes shown by the plaintiff, but in the case in hand the saplication filed in such behalf is altogether silent, thus the Orders of both the Courts below cannot sustain. For the above reasons, this petition is allowed and the impugned Orders dated 30th November 2023 passed by learned Qazi Tump and dated 31st January, 2024, passed by learned Majlis-e-Shoora Turbat are set-aside and in consequence whereof the application filed under Order XXIII, Rules 1 and 2, C.P.C. is hereby rejected and the suit is restored in its previous position. The trial Court to proceed the case in accordance with law. UN/106/Bal. Petition allowed.