ABDUL SHAKOOR PARACHA, J. --- M/s. Muslim Commercial Bank Limited petitioner through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 assails the orders dated 18.11.2002 and 19.3.2004 of the learned Judge Banking Court, Rawalpindi.
Through the formal order, learned Judge Banking Court rejected the application of the petitioner Bank seeking to implead legal heirs of the defendant No. 3 Ch. Abdul Karim son of Muhammad Abdullah deceased through the latter order dated 19.3.2004 .The application of the petitioner seeking withdrawal of the suit with permission to file in fresh suit was also dismissed.
2. Brief facts of the case are that Muslim Commercial Bank petitioner filed a suit for recovery of Rs. 11,96,116/- against the defendants/respondents Nos. 1 to 3 before learned Judge Banking Court, Rawalpindi on 11.7.2002.
The respondents Nos. 1 & 2 filed an application for leave to defend the suit and contended that defendant No. 3 i.e. Ch. Abdul Karim had died on 18.12.1999. According to the petitioner's bank this was first time when it come to the knowledge of the plaintiff-bank that the defendant No. 3 had died before filing of the suit. Consequently, the Bank filed an . Application before the Banking Court on 30.9.2002 seeking permission from the Banking Court to implead the legal heirs of the defendant No. 3. After receiving the reply of the application learned Judge Banking Court vide order dated 18.11.2002 turned down the application of the plaintiff-bank to irnplead the legal heirs of the defendant No. 3 by observing that Ch. Abdul Karim defendant No. 3 admittedly had died 'prior to the institution of the present suit, therefore the suit cannot proceed against him. I, therefore delete the defendant No. 3 from the category of defendants. However, I clarified that the plaintiff shall be of liberty to proceed against the legal heir of the defendant No. 3 independently in accordance with law.
3. Thereafter, the plaintiff-Bank filed another application seeking' permission of the Court to withdraw the suit with permission to file fresh suit on the some cause of action on 28.1.2004. After receiving the reply of the application, the same was also dismissed by the learned Judge Banking Court vide dated 19.3.2004 and it was held that "there was no defect in the suit therefore the application seeking permission to withdraw the suit to file a fresh one is rejected. Against the above-said impugned orders of the learned Judge Banking Court this writ petition has been filed.
4. Learned counsel for petitioner contends that order dated 18.11.2002 of turning down the application of the petitioner's Bank to implead the legal heirs of the deceased Ch. Abdul Majeed is against law and facts as the petitioner Bank first time come to know that the defendant No. 3 had died when the application for leave to defend the suit was filed by defendant Nos. 1 and 2 on 24.8.2002; further that defects pointed out in the application under Order XXIII, Rule 1, C.P.C. To withdraw the suit with permission to file fresh suit was formal in nature and without removing them there is no livelihood of filing of a suit afresh learned Trial Court ought to have granted permission to withdraw the suit to file a fresh suit in respect of the same subject-matter, further that defendant No. ' 3 (mortgagor) expired before filing of the suit which was not in the knowledge of the plaintiff- bank before filing of the suit.
5. Both the impugned orders are not final. The suit is still pending, therefore, some are not appealable, therefore, the present writ petition is maintainable.
6. Against the impugned order dated 19.3.2004 writ petition has been filed on 21.4.2004 no period for filing the writ petition has been provided therefore the writ is not hit by laches.
7. Arguments heard. Record received. According to the petitioner-Bank defendant No. 3. Ch. Abdul Karim son of Muhammad Abdullah offered his personal guarantee and also executed signed and delivered memorandum of deposit of little deed to the plaintiff bank, mortgaged property of residential house No. 490 (Niazi Building) Brown Low Street, Rawalpindi and executed irrevocable power-of-attorney in favour of the petitioner bank. The defendant No. 3 also deposited sale-deed dated 2a.5.1968 with the plaintiff Bank. According to the defendants Nos. 1 & 2 the defendant No. 3 had died on 18.12.1999 before filing of the suit on 11.7.2002. The suit against a person who is dead is nullity in the eye of law. In case reported as Mehr Muhammad v. Deputy Settlement Commissioner and another (PLJ 1980 SC 97) the Hon'ble Supreme Court of Pakistan had ruled that it is well- established law that one order passed against a dead person would be a nullity in law especially when long before the institution of the proceedings against him he had already. Died. Therefore, the applibation of the plaintiff-bank seeking, permission to implead the legal heirs of the defendant No. 3' has rightly been rejected for the learned Judge Banking Court with his order dated 18.11.2002:
8. Now coming to the order dated 19.8.2004 of the learned Judge Banking Court through which the application of the petitioner-bank seeking permission to withdraw the said suit with permission to file a fresh suit on the same cause of action is concerned, as state above Ch. Abdul Karim son of Muhammad Abdullah offered his personal guarantee with mortgaged property and also deposited sale-deed with the plaintiff Bank, the against the dead person as stated above was nullity in the eye of law. Without joining the legal heirs of the legal heirs of the defendant No. 3 Ch. Abdul Karim the suit could have been hit by the doctrine of mis-joinder of necessary parties. In this view of the matter there was a legal defect in the form of the suit.
9. The expression "formal defect" has not been defined anywhere in the Code of Civil Procedure, but its plain meaning appears to be that the defect should be only in point of form of the suit. It appears to connote every kind of defect which does not affect the merits of the case. If the defect is a material and substantial and affects the merits of the case or goes to the root of the claim it will not be.a formal defect within the scope of sub-clause (a) of sub-rule (2) of Rule 1 of Order XXII, Civil Procedure Code". See case of Muhammad Din v. Atta Muhammad and others (PLD 1957 (P.W.)
Lahore 971). In case reported as Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakharuddin Durrani and others (2001 SCM R 148) the expression "formal defect" appearing in Order XXIII, Rule 1(2)(a), C.P.C., it had been ruled that, "suit framed under the provisions of Code 'of Civil Procedure is not arranged in accordance with the Order VI, Rr. 1, 2, 3, 4, 14, 15 or Order VII, Rr. 1 to 7, C.P.C. Would be deemed to be suffering from "formal defect". In case reported as Atul Krushna Roy v. Raukishore Mohanty and others (A.I.R. 1956 Orissa 77) it has been held that, "a formal defect is a defect of form which is prescribed by rules of procedure such as mis-joinder of parties, of causes of action, non-payment of proper Court-fee, failure to disclose cause of action and so forth."
10. Similarly phrase "other sufficient grounds" appearing in Order XXIII; Rules 1 and 2, C.P.C. Has also been taken note of by High Court of Azad Jammu and Kashmir in case of Aqal Hussain v.
Muhammad Sadiq and 7 others (1986 CLC 1316) that, "benefit of "other sufficient grounds" can be availed when defect discovered in pleadings in bona fide refusal to withdraw suit, to bring a fresh suit, is likely to lead to multifarious litigation withdrawal does not injure vested rights of opposite party and serves ends of justice."
11. In the instant suit filed by the petitioner Bank it was not in the knowledge of the petitioner Bank that defendant No. 3 Ch. Abdul Karim son of Muhammad Abdullah who offered his personal guarantee, executed, signed and delivered memorandum of deposit of title deed to the plaintiff bank mortgaged property of residential house No. 490 (Niazi Building) Brown Low Street, Rawalpindi, executed irrevocable power-of-attorney in favour of the petitioner bank and the defendant No. 3 also deposited sale-deed No. 1811, dated 23.5.1968 with the plaintiff bank was a necessary party and since he had died before filing of the suit, therefore, the suit against him was nullity in the eye of law and his legal heirs could have not been impleaded as party, therefore, there .Was legal formal defect in the form of the suit. The defect covered in the plaint was bona fide in nature, therefore, refusal to withdraw the suit is likely to lead to multifarious litigation. Besides, withdrawal does not injure vested rights of opposite party and serves ends of justice. Therefore; learned Trial Court ought to, have granted permission to withdraw the suit and file a fresh suit in respect of the same subject-matter.
12. For what has been discussed above, writ petition to the extent of order dated 18.11.2002 is dismissed as Ch. Abdul Karim defendant No. 3 had died prior to the institution of the suit and the suit against a dead person cannot proceed and is nullity in the eye of law. This writ petition to the extent of order dated 19.3.2004 in allowed and the impugned order of dismissing the application of the petitioner Bank seeking withdrawal of the suit and to file fresh suit is declared to have been passed without lawful authority and of no legal effect. Consequently, the application of the petitioner Bank to withdraw the suit with permission to file a fresh suit is accepted subject to payment of Rs. 2,000/- as costs to the respondents.
No order as to cost of this writ petition. .