P L D 1956 (W (PLP)

KAIKAUS, J.

This is an application in revision against the order of the learned Civil Judge, Mandi-Baha-ud-Din allowing a suit to be withdrawn with liberty to bring a fresh suit on the same ca of action. The sole plaintiff in the suit was Sardara, the present respondent, d the sole defendant Mst. Fatima the present petitioner. The case in the plaint was that the defendant had transferred about 64 kanals of land in village Doburji, Tahsil Phalia, to the plaintiff by means of a registered gift deed. The plaintiff himself was already a co-sharer in the khatas out of which the land was gifted. In spite of the gift, the defendant had applied for partition of the joint khatas which afforded the plaintiff a cause of action. The relief sought was a declaration that the property gifted belonged to the plaintiff and an injunction that the defendant be restrained from getting the land partitioned. The defendant resisted the suit on various grounds. She pleaded that she was a minor on the date of the deed, that the gift was invalid on account of undue influence and coercion, that the doctrine of musha was a bar to a gift of a share in land, and that the gift was incomplete on account of non-delivery of possession. A number of issues had been framed on the basis of these pleas; both parties led evidence and after argu ments the case had been fixed for the 5th of April 1955, for orders. On that date, in the absence of the defendant, the plaintiff put in an application, the sole content of which is the following paragraph :- "In the suit there are certain defects which it was neces sary to embody in the plaint. Permission may be granted to withdraw the suit and to file a new suit". The paragraph is to some extent unintelligible, but it does state that there are certain formal defects in the suit. On receiving this application, without notice to the other party, the learned Civil judge recorded the statement of counsel for the plaintiff who said: "In the suit there are some formal defects. Permission may be granted for abandoning the present suit and filing a new one". The Court then passed the following order:- "In accordance with the statement of counsel for the plaintiff there are formal defects in the plaint. The evidence in the case has also been closed. The plaintiff is, therefore, permitted to withdraw the present suit and file a new one. The plaintiff will have to deposit Rs. 100 as costs payable to the defendant in Court before he files the fresh suit". Learned counsel for the plaintiff respondent urges that an order allowing the withdrawal of a suit is not open to revision at all. There is no doubt that, as held in Gurprit Singh and another v. Punjab Government (1) the words "other sufficient grounds" in Order XXIII, rule 1 Civil P. C. do not necessarily imply grounds ejusdem generis with 'formal defect', and if a subordinate Civil Court grants permission for with drawal of a suit regarding any ground to be sufficient, the order may if the ground is in fact insufficient, amount only to a wrong exercise of discretion and would not be hit by section 115 Civil P. C. However, there are two reasons why I would set aside the order in the present case. They are (A I It 1946 Lah. 429) the order was passed without notice to the other party; and (2) the order does not show that the learned Civil judge applied his mind at all as to whether i particular defect cons tituted a good basis for his order. As regards the first reason it is urged by the learned counsel for the respondent that there is no provision in Order XXIII, rule 1 for a notice to the other party and, consi dering that in some other provisions of the Civil P. C. a notice to the other party is provided, it should be held that the passing of such an order without notice to the other party is neither an illegal exercise of jurisdiction nor any material irregularity in the exercise of jurisdiction. I have no hesi tation in rejecting this argument. It is an elementary principle of justice that no judicial order affecting a party can be passed without an opportunity to that party to contest it. Of course, there are some orders of a temporary and provisional nature which have to be passed without notice to the opposite party, but such orders will always be subject to the right of the other party to move the Court to have the order set aside. For instance, if a party applies for an injunction, it is open to the Court to issue an interim injunction even without hearing the other party. Similar would be the case with an application for appointment of a receiver. When an appeal is preferred, which is time barred, unless the Court extends time under section 5 of the Limitation Act, the Court must if the first instance extend time without notice to the other party. However, in such cases the order of Court is subject to the right of the other party to have the matter reopened and decided after the party is heard. Final orders can in no case be passed without notice. In support of the proposi tion that no order behind the back of a party can affect the party, I might refer to Rajendra Lai Sur v. Atal Bihari Sur (I L R 44 Cal. 454), Chaganlal v. Mst. Dhaina (A I R 1930 Nag. 151), Ajant Singh v. Sunder Mall (16 1 C 567), Begg's case (11 Rep. 3), Re. Hammersmith Ren-Charge (19 L J Ex. 66), Reg. v. Sadlers' Company (&), Smith v. LZaean (38 L T 233) and Balabai v. Ganesh Shankar (I L R 27 Bom. 162). Learned counsel for the respondent relies upon Messrs. Karim Bakhsh and brothers v. Mirza Muhammad Siddique and another (P L D 1951 Lah. 383) for the proposition that the violation of a principle of natural justice does not afford a ground for revision. In that case the only defect in a judgment was that the learned Judge accepted an explanation as to the non-production of a material witness. It was argued that this was opposed to some principles of natural justice. Kayani, J. held that there was no principle of natural justice violated at all, but assuming that some principle was violated, that would not by itself afford a ground for revision. In the first place, no principle of natural justice having been violated in that case, the judgment is really not of great assistance, but in any case all that is laid down is that the violation of a principle of natural justice does not necessarily constitute a ground for revision. That does not mean that even the violation of the elementary principle that no party can be bound by an order passed behind his back could not be a ground for setting aside the order in exercise of powers of revision. This principle is deemed to be embodied in the provisions of the Civil P. C. Principles of natural justice do not need to be expressly embodied in procedural enactments. It is implied in all provisions of the Civil P. C. that an order which affects a party is to be passed only after notice to him. From this point of view this principle of natural justice becomes a part of our procedural law so that a violation of it attracts the provisions of section 115 of the Code of Civil Procedure. The second objection against the order is also weighty. The trial Court may have full authority to regard any ground sufficient for allowing withdrawal, but I have to be satisfied that the learned Civil Judge did in fact apply his mind to the facts of the case and did regard a particular ground as suffi cient. The present case is one of formal defect. Can I presume that the learned Civil judge did consider a particular e defect and granted the permission on account of that defect? In the circumstances of the present case, I do not see how I am entitled to presume it. The application by the plaintiff does not disclose any defect and the statement made by the learned counsel does not state any defect, and it is quite possible that the learned Judge has passed this order simply on the basis of the statement without applying his own mina to the question whether there is a formal defect. The order does not show that the learned judge in fact applied his mind, nor is it clear that the learned Judge recorded any finding regarding the existence of formal defect though it is possible to argue that the learned judge accepted the statement of the counsel as to there being a defect. The words used are :- "hasb-e-bayan-e-counsel-mudda'ee, da'wa-e-haza main formal naqais pain". This might only mean, as I have translated it above, that according to counsel there are defects in the suit. It is urged by learned counsel for the respondent that really it means 'as stated by counsel'. I do not altogether exclude this possibility, but the other interpretation is the more probable one. In any case, there is nothing to show that the learned Civil judge himself considered a particular formal defect and reached a conclusion that on account of that defect the suit should be allowed to be withdrawn. I would set aside the order under revision. The next point is whether I should simply direct the learned Civil Judge to rehear the matter after notice or whether I should decide the question of withdrawal myself. After hearing learned counsel for the respondent, I have reached the conclusion that I should decide the matter myself. The only formal defect which according to learned counsel for the respondent existed in the suit is that some of the khasra numbers mentioned in the plaint are incorrect. This defect was of a very formal nature which deed not have any effect on the suit at all. The khata numbers had been correctly stated in the plaint and a jamabandi of the land in suit had been filed along with the plaint. The gift deed itself had also been filed. There could, therefore, be absolutely no doubt as to the identity of the land in suit. Even if an application was made to the Court at the end of the proceedings for allowing a correction of the clerical mistake, there would be no objection to the Court allowing an amendment there and then without giving any further opportunity to the other party G to adduce any fresh evidence. In the circumstances of this case, there was no need of any further adjournment. The defendant had not taken any objection that there was any defect in the plaint. She had taken no plea as to the incorrect ness of the khasra numbers. Before me learned counsel for the respondent has agreed that there is no need to grant an adjournment to the defendant if the plaint is allowed to be amended and that after the amendment the suit may be decid ed without any further proceedings. Under the circumstances I accept this revision, set aside the order of allowing withdrawal and remand the case to the trial Court for decision in accordance with law. The trial Court will allow to the plaintiff an amendment of the plaint so as to correct the khasra numbers mentioned therein. It D will then allow the parties an opportunity of arguing the case and will they; deliver judgment. I have deliberately reopened the case so far as the arguments are concerned, because after such a long time the learned judge cannot be expected to remember the, arguments put forward and he may either not have any notes or may have destroyed the notes. The respon dent will bear the costs of the petitioner in this Court. A. H. Petition accepted.