1. NADEEM AZHAR SIDDIQI, J. --- By consent of the learned counsel C.M.A. No. 459 of 2008 is taken-up for hearing.
2. By this application the plaintiff has prayed for withdrawal. Of the suit with permission to file a fresh suit on the same cause of action.
3. Learned AAG submits that the plaintiff has filed this collusive suit on the basis of forged and fabricated documents and when this objection was taken in the written-statement filed by Defendant No. 4 the plaintiff has filed this application for withdrawal of the suit with ulterior motives.
4. Learned counsel for the plaintiff submits that the suit is defective for want of proper prayer and for want of proper and necessary parties.
5. At this stage when the plaintiff is going to withdraw the suit no finding on the merit of the case can be given. Since the plaintiff does not want to proceed with the suit the Court cannot compel him to do' so and the learned A.A.G. May raise this objection in appropriate proceedings.
6. However, while granting permission the Court has to satisfy itself whether the plaint suffers from defect as claimed by the plaintiff or not.
7. I have done through the contents of the plaint. Sub-rule (2) of Order XXIII, C.P.C. Provides that Court satisfied that suit would fail by reason of some formal defects or there are other sufficient grounds for allowing the plaintiff to institute fresh suit for the subject-matter of the suit may grant permission to the plaintiff to withdraw the suit with liberty to institute a fresh suit. I am satisfied that the plaint suffers from formal defect and suit would fail in present form for want of necessary and proper parties and prayers.
8. Learned A.A.G. Claims cost. The plaintiff is directed to deposit the cost of Rs. 10,000/- with the Nazir of this court who will appropriate the same in the account of High Court Employees Benevolent Fund. .