Civil Appeal No. 30/13 of 1979 was pending in the Court of Additional District Judge, Malakand at Batkhela. Haji Muhammad Akram was the appellant and Gul Amin etc. Were the respondents. On 12-10-1979 the appellant submitted an application before the Additional District Judge, Batkhela praying that he may be allowed to withdraw his suit which had earlier been decided by a Civil Judge of Dargai, he being the plaintiff, and to be allowed to- institute a fresh suit. The respondents were called upon- to reply and they in their written objection dated 16-1-1980 contested the petition on 'the grounds that the petition for withdrawal was not within time and that they i.e. The respondents had already spent a lot of money on litigation and in case the appellant was allowed to Withdraw his suit then he should be obliged to pay to the respondents Rs. 2,500 as compensation. The application was contested on almost all points. On 4-2-1980 the Additional District Judge, Malakand at Batkhela in the presence of the parties heard the arguments of their learned counsel on the applica--petition of the appellant for withdrawal of the suit. The learned Additional District Judge, consequently allowed the plaintiff-appellant to withdraw the suit with liberty to bring a fresh suit on the same cause of action subject to the payment of Rs. 100 as costs to the contesting defendant-- respondents. That order has now been challenged in this revision petition. It is contended on behalf of the petitioners that the respondent has not been able to point out any formal defect in order to entitle himself to the permission sought through the application which he submitted before the Additional District Judge, Batkhela. It is further submitted that the respondent's contention that the suit was not properly drafted by the counsel or that certain necessary parties had not been impleaded or that the list of documents was not attached or that a notice was not served before the suit are not legally tenable grounds which might entitle the respondent to secure permission from the Additional District Judge to withdraw the suit with permission to file a fresh suit. It is further objected that the Additional District Judge has not given any finding in his impugned order with regard to any formal defect and that his order is summary and cursory which cannot be sustained. It was argued on behalf of the petitioners that the plaintiff- respondent had not been able to bring his case within the ambit of Order XXIII, rule 1, C. P. C. It was consequently requested that on the acceptance of this revision petition, the withdrawal order may be vacated and the appeal may be sent back to the Additional District Judge at Batkhela for decision on merits. In support of his arguments learned counsel for the petitioners placed his reliance on an authority of the Supreme Court reported as Ahmad Din and 3 others v. Town Committee (1972 SCMR 205). He contended that when the defects are not formal, the withdrawal of the suit does not become justifiable and in such circumstances permission should not be granted. In that case an application was moved for withdrawal and the plaintiffs were allowed to file a fresh suit on payment of Rs.
30. That order was challenged before the High. Court in C. R. No. 44 of 1971 and a Single Judge of the Lahore High Court by judgment dated 7th November 1971, accepted the petition, set aside the impugned order of withdrawal and permission to file a fresh suit and directed that the suit be decided according to law. In that case it was held that the contention of the learned counsel for the petitioners who were seeking leave to appeal, that although there may not be any formal defect in the suit, there were other sufficient reasons to allow the petitioners to seek permission to withdraw the suit with permission to file another suit, did not find favour with a Division Bench of the Supreme Court and their Lordships observed that, "After going through the record we are satisfied that the learned trial Judge did not apply his mind to the facts of the present case". Their Lordships held that the issues on the basis of which the withdrawal was allowed were not of a formal character and instead they went to the roots of the case and therefore the lower Court was not competent to grant permission to file another suit. In a case from Baghdad-ul-Jadid reported as NLR 1979 Civil 169 a Single Judge of the Lahore High Court had in a case of Ahmad Mian v. Malik Bahadur and 21 others (NLR 1979 Civil 169) observed that the Court should record a detailed order and finding that conditions necessary for allowing withdrawal are fulfilled. It was further observed that permission by Additional District Judge to allow withdrawal of suit without recording a detailed order and necessary finding constituted illegal and materially irregular exercise of jurisdiction and there-- fore the. High Court in its revisional jurisdiction was justified to set aside the order of the Additional District Judge and remitting the ease for decision of appeal on merits.
2. Looking at the application of the plaintiff-appellant now respondent which he submitted to the Additional District Judge, Batkhela, one of the grounds taken therein is, that his counsel had wrongly drafted the plaint. Secondly that Gulab had not been made a party in this suit as a result of which his suit failed and it is again going to fail. Fur--their that some documents or their list had not been attached with the suit and that no notice had been given according to law to the defend- -ants. In the impugned order of the Additional District Judge we do not find, that, the Court was satisfied that the suit would fail by reason of some formal defects. Non joinder of parties is not a formal defect, wrong drafting of the plaint is also not a formal defect and omission to include documents, is also not a formal defect. No general power exist with the Courts to allow a suit to be withdrawn with the liberty o suing again and Order XXIII, rule 1, C. P. C. Is the only rule which covers the field and it is incumbent on the Court under this rule to first satisfy itself that the conditions specified therein exist. It is an accepted law that the failure of the plaintiff to prove his case, is no ground for allowing him to withdraw his suit with liberty of suing again for the same subject- matter. The object of this rule is not to enable a plaintiff after he has failed to conduct his suit with proper care and diligence to obtain an opportunity of commencing the trial afresh in order to avoid the result of his previous bad conduct of the case so as to prejudice the opposite-party. The defect in the suit must be one not affecting the merits of the case but having the effect of shutting out a fair trial on the merits and arising out of some error made in good faith by the plaintiff which can only be effectively set right by a fresh trial. The defect must not be due to the plaintiff's own fault or the fault of his counsel nor the one which is curable by amendments.
3. An order allowing the withdrawal of a suit with liberty to sue afresh is a decision of a case within the meaning of section 115, C. P. C. And is, therefore, open to revision if it is made on grounds not covered by Order XXIII, rule 1, C. P. C. The lower Court must exercise a judicial discretion and apply its mind when it allows the withdrawal of a suit with liberity to institute a fresh suit. There are numerous authorities which support the view that where a lower Court orders a suit to be withdrawn with leave to sue afresh without giving any reasons (as it has occurred in the present case) it acts with material irregularity and its order is liable to be set aside in revision.
4. The impugned order of the Additional District Judge would show that no reason has been given as to why the withdrawal was being allowed with permission to bring a fresh suit. A plaintiff can withdraw a suit as a matter of right without the permission of the Court. But in that case he will be precluded from suing again on the same cause of action. The Court should have considered the objections of the opposite-party which were taken against the withdrawal of the suit. No such decision was made before passing orders on the application to withdraw the suit. The impugned order of the Additional District Judge constitutes materially irregular exercise of jurisdiction and it is liable to be set aside.
5. The result of the above is that the impugned order of the Additional District Judge Malakand at Batkhela is set aside and the case is remitted to him for decision of the appeal on merits. Costs shall follow the event.