P L D 1955 Peshawar 65 (PLP)

MUHAMMAD SHAFT, J.

Subedar Haji Niamatullah Khan on 5th November, 1953, instituted a suit against Mst. Sharifa, the widow and six daughters of one Rahmatullah Khan, for posses sion by partition of 1/5th share of a house, situated in Utmanzai village, and eight shops in the Utmanzai Bazaar. The parti culars of the shops were given in the plan attached with the plaint. The defendants contested the suit, and stated that the house and four shops shown in the plan as Nos. 5, 6, 7 and 8 were given to Mst. Sharifa in dower, and so far as the other shops were concerned they were subject to a mortgage-charge as well as the charge of the funeral expenses, etc., of Rahmat ullah Khan, which had been incurred by Mst. Sharifa. The plaintiff put in a replication to the written statement in which he denied Mst. Sharifa's claim and reiterated the fact that the entire property in suit belonged to Rahmatullah Khan and was liable to be partitioned. The plaintiff failed to appear on 12th February, 1954 in Court with the result that his suit was dismissed in default under Order 9 rule 8 Cr. P. C. On 13th February, 1954, an application for the restoration of the suit was made, and the learned trial court after record ing some evidence restored the suit. On 3rd November, 7 954, Subedar Haji Niamatullah Khan made- an application under O. XXIII, r. 1, C. P. C. for the withdrawal of the suit with the permission to bring a fresh suit. This application was accepted by the learned trial judge by a brief order, in which he said that there was no formal defect existing in the case, but there was certainly a sufficient ground for allowing the plaintiff's application, because the reason advanced by him was quite convincing. At the instance of Mst. Sharifa a rule is taken out, calling upon the plaintiff Subedar Haji Niamatullah Khan to show cause why the above order of the learned trial Court, permiting him to withdraw the suit with liberty to file a fresh suit on the same cause of action be not set aside. The only ground advanced by the plaintiff for giving him the requisite permission, which was found convincing by the learned trial judge, was that he had by mistake included in the suit four shops, which in fact did not belong to Rahmatullah Khan, but belonged to his own self, having been purchased by him from Rahmatullah Khan by a registered deed dated 13th March, 1938. Under O. XXIII, r. 1, Cr. P. C., the Court is only justified to accede to such a request of the plaintiff, if it is satisfied that the suit must fail by reason of some formal defect, or 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. As has been admitted by the learned trial Court there was no formal defect in the suit at all. As regards "other sufficient grounds" in my opinion these grounds should be, if not ejusdem generis with the formal defect, at least analogous to it. It will be a travesty of judgment to hold that the plaintiff can be shown indulgence under this provision of law for the mistakes committed by him either through care lessness or deliberately in the favour of his suit. The fact that the plaintiff had included in the plaint certain property belonging to his own self and not belonging to Rahmatullah B Khan is certainly not a sufficient ground for allowing the plaintiff to withdraw his suit with liberty to institute a fresh suit. In my view, therefore, the order of the learned trial Court allowing the application of the plaintiff was completely without jurisdiction. I consequently accept this revision petition, set aside the order of the learned trial Judge, and send the case back to him for trial according to law. The petitioner shall have her costs in this Court. Pleader's fee Rs. 20/-/- Order announced. A. H. Petition accepted.