2021 PLP 1766 (CLC)

ABDUL HAMEED BALOCH J.

The petitioned plaintiff questioned order dated 19th March, 2021 (impugned order) passed by Judicial Magistrate/Civil Judge, Kuchlak, (trial court), whereby the application tiled by the petitioner/ plaintiff under Order XXIII, Rule 1(2), C.P.C. was rejected.

2. Precise facts of the case are that the petitioner/plaintiff filed a suit for declaration, cancellation/ revocation of sale agreements and permanent injunction against the respondents/ defendants in the court of Judicial Magistrate/Civil Judge, Kuchlak, with the prayer: a. Declaring that the defendants Nos. 1 and 2 have miserably failed to perform their part of obligations towards the Iqrarnama/ sale agreement dated 30.09.2019, by not paying rupees 7/8 crores to plaintiff within stipulated period, the sale agreement in question stood cancelled; b. Declaring that since the defendants Nos. 1 and 2 have cheated the plaintiff and committed fraud and failed to perform their part of obligations towards the sale agreements in question, therefore, they have no concern, connection, interest and right with the property/ land settled land/ property and Shamilat land bearing khasra No. 480, Mutation No.214, with reference to Mutation No. 2384 and khasras Nos. 476, 477, 478, 479, Mutation No.2916 with reference to Mutation No.2412, measuring 137 rods, 01 pole, situated at Mohal Viala Kuchlak, Mouza Kuchlak, Tappa Kuchlak, District Quetta (Atozaim road, near new western bypass Quetta); c. Declaring that Iqrarnama/sale agreement dated 30.09.2019, as null and void and having no legal sanctity due to failure on the part of defendants Nos. 1 and 2; d. Permanently restraining the defendants Nos. 1 and 2 from selling, transferring, mutating, alienating the property in question or making any kind of interference in the peaceful possession of the plaintiff over the property in question; e. Any other relief, which may deem fit and proper in the circumstances of the case may also be awarded; f. Cost of the suit may also be awarded."

3. The respondents/ defendants Nos. 1 and 2 filed written statements, raised legal objection that since the required period of the agreement is not completed, thus no cause of action accrued to the petitioner/plaintiff against the respondents/ defendants Nos. 1 and 2, hence the suit is not maintainable and prayed for dismissal of the suit. The trial court framed issues.

4. Meanwhile the petitioner/plaintiff filed an application under Order XXIII, Rule 1(2), C.P.C. for withdrawal of the suit to permission to file afresh one. The respondents/ defendants Nos. 1 and 2 filed rejoinder to the application and strongly contested the contention of the petitioner/ plaintiff and prayed for rejection of the application. The trial court after hearing arguments rejected the application vide impugned order dated 9th March, 2021. The relevant portion of the order reads as under: "4.

The application has been filed with averments at the time of filling of suit contract had not expired but other irregularities had surfaces that had made the execution of agreement almost impossible. As the suit of the plaintiff is suit for Declaration, Cancellation, Revocation of Sale agreements, and permanent injunction. The plaintiff has filed the instant suit before completion of time of sale agreement, which show that suit was filed without accruing any cause of action. Whereas Order XXIII, Rule 1(2), C.P.C. is clear that when a suit must defect due to a formal defect. Word formal defect relates to matters of form used in pleadings, indictments, affidavits, conveyance and related to mode and form of style of expressing facts involved. As in present case the defect is not formal, it touches the merit of case and the court is not satisfied that it is a formal defect. On for going reason the application in hand is hereby rejected."

5. It would be appropriate to reproduce Order XXIII, Rule 1(2), C.P.C. for ready reference: "

1. Withdrawal of suit or abandonment of part of claim.

(1)

(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 or 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."

6. As per sub-rule (b) of Rule 1(2) of Order XXIII, C.P.C. the court is empowered to allow the plaintiff to file afresh suit on other sufficient grounds, meaning thereby the formal defect is not only pre-condition for permission to file fresh suit. The record reflects that the respondents/ defendants Nos. 1 and 2 raised objection on maintainability of suit on the ground that prior to completion of date for specific performance the suit of the plaintiff is pre-mature. The petitioner/ plaintiff filed application under. Order XXIII, Rule 1(2), C.P.C., in which clearly taken ground that the plaintiff filed suit before expiry of date for specific performance. This means that the petitioner/plaintiff has no cause of action. The above referred provision is not limited to formal defect but the court can consider the other sufficient ground for deciding the application for withdrawal. It is settled principle of law that technicalities should not be allowed to defeat the justice. Reliance is placed on 1989 MLD 3040, wherein it was held: "

6. Having considered the submissions of learned counsel for the parties. I am inclined to hold that the authorities cited at the Bar by learned counsel for the petitioner relate to the scope of expression "formal defect" as used in Order XXIII, Rule 1(a), C.P.C. Here there is no dispute that the alleged defect was not covered by the words "formal defect". The question arises as to whether the case in hand is covered by the expression "other sufficient grounds" as used in clauses (b) ibid. 1 follow with respect the dictum laid down in Gurprit Singh's case that the words "other sufficient grounds" as used in Order XXIII, Rule 1(2)(b) C.P.C. are not ejusdem generis with the words "formal defect" referred to in Rule 1(2)(a) of Order XXIII, C.P.C. and are much wider in signification and can cover all those cases which appear to Court as affording such ground. This expression is certainly not restricted to the grounds relatable to "formal defect". The same view was taken in Municipal Committee, Chakwal v. Fateh Khan (PLD 1959 Lahore 535) and Bahadur Khan's case. In Gurprit Singh's Case, it was also held that the 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 can be granted. Reference may also be made to Ismail v. Fida Ali (PLD 1965 SC 634), wherein on the oral prayer of learned counsel for the plaintiff; the Supreme Court granted leave for withdrawal of the suit with permission to file a fresh suit. In the instant case, learned Additional District Judge in the exercise of his discretion under Order XXIII, Rule 1, C.P.C. allowed the oral petition for withdrawal of the suit with liberty to file fresh suit on cogent reasons. The mere fact that the plaintiff/respondent took no step for withdrawal of the suit at the trial stage and invoked the provisions of Order XXIII, Rule 1, C.P.C. for the first time at the appellate stage, would not ipso facto render the impugned order illegal within the ambit of Section 115, C.P.C. It is well settled that the Court in the exercise of revisional jurisdiction will not interfere to correct every irregularity, but only where grave injustice or hardship will result on account of non-interference. It will be unjust to deprive plaintiff/respondent from filing a fresh suit to establish his valueable proprietary rights. The rationale behind Order XXIII, Rule 1 C.P.C. is to prevent technicalities from defeating justice. Even if it is assumed that the said provisions are not attracted here, the plaint can be allowed to be amended under Order VI, Rule 17, Code of Civil Procedure, for the purpose of determining the real question in controversy at any stage. This is, therefore, not a fit case for interference in revision." In view of above circumstances the instant petition is allowed. The impugned order dated 19th March, 2021 passed by Judicial Magistrate/Civil Judge, Kuchlak is set aside. The application filed by the petitioner/plaintiff under Order XXIII, Rule 1(2), C.P.C. is accepted. The petitioner/plaintiff is allowed to withdraw his suit and file fresh suit with all just legal exceptions. No orders as to costs. MQ/94/Bal. Revision allowed.