This civil revision calls in question the judgment dated 18.06.2011, passed by the learned ADJ-I, Kohat, whereby the appeal filed against the judgment and decree dated 15.04.2010 recorded by learned Civil Judge-XL Kohat, was dismissed.
2. Arguments heard and record perused.
3. It appears from the record available on file that on 01.02.2005, Syed Siddique Shah (since dead) and now represented by his legal heirs and petitioners before this Court has filed a suit against Muzaffar Khan and 3 others for declaration to the effect that, he is owner of a land bearing Khasra Nos,920, 920/1, 1050 and 6, situated in the local limits of Mauza Kharmatoo, District Kohat and as such Respondent/Defendant No, 1 has got no right whatsoever to make it transfer in favour of Respondent/Defendant No,
2. That the general power of attorney dated 31.08.1991 attested on his behalf in favour of Respondent No, 1 is wrong, illegal, fictitious and the result of fraud and collusion, as he never empowered him and, therefore, Mutation Nos, 4075, 4077, 4104 and 6737 alongwith other mutations attested subsequently by the Respondent No, 1 on his behalf as a general attorney are absolutely wrong and as such are ineffective upon his rights.
4. The suit was vehemently contested by the Respondents/ Defendants No, 1 and 2 by submitted their written statement wherein they raised several objections both legal and factual. According to them the general power of attorney has rightly been executed by the plaintiffs in favour of Respondent No, 1 and, hence, the sale/transfer of the land, which he has made in the capacity of general attorney is legal. They, in their written statement, have further asserted that since the property in dispute has subsequently been transferred in favour of others and since none of them have been arrayed as party in the panel of defendants, therefore, the suit is not competent.
5. In view of the allegations and assertions of the parties, the learned lower Court recorded their evidence for and against and thereafter it was on 15.04.2010 when the plaintiff was non-suited by the learned Civil Judge, Kohat, which findings have been assailed in the Court of ADJ, Kohat, but, there he also met the same fate.
6.Admittedly and as is evident from the record, the bone of contention between the parties is the general power of attorney executed on behalf of the plaintiff in favour of Defendant No, 1, but before adhering to the said general power of attorney, it will be more appropriate to refer to the application, which the Petitioner No, 2 has moved in the Court of ADJ, Kohat for withdrawal of the suit with permission to bring a fresh one Copy of the said application is available on the record and perusal of the same would show that the petitioners have sought permission for withdrawal of the suit with permission to file a fresh one on the grounds that some of the mutations have not been challenged by them.
7. According to Order XXIII Rule 1 of the Code of Civil procedure 1908 at any time after the institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim where the Court is satisfied-- (a)that a 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 subhect-matter of a suit or part of claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or fresh suit in respect of the subject-matter of such suit or plaintiff to institute a fresh suit for the subject- matter of a abandon such part of a claim with liberty to institute a such part of a claim.
(b) Where the plaintiff withdraws from a suit, or abaridons part of a claim, without the permission referred to in sub-rule and shall be, precluded from instituting any fresh suit in (2), he shall be liable for such costs as the Court may award respect of such subject-matter or such part of the claim".
8. So far as the formal defect is concerned, it should be of such a nature which entails the dismissal of the suit while going through the evidence led by the parties and particularly that of the revenue officials one could reach to the safe conclusion that even after the attestation of the impugned mutations the property has subsequently been transferred to so many other persons on the basis of mutations and the transferees have been made a party in the suit. Needless to say that failing to implead a necessary party also comes within the ambit of term "formal defect". Here I would also like to refer to Order I Rule 10 CPC where it has been provided that the persons who ought to have been joined as party and in whose absence an effective decree could not be passed are necessary party as in the instant case where neither the I subsequent mutations nor it transferees have been arrayed by the petitioners in the panel of the respondents/defendants.
9. So far as the evidentiary value of the impugned general Power of attorney is concerned in this respect suffice it to say that let it be resolved by the trial Court on its own merits in the new suit if filed by the petitioners.
10. In view of the above, on 'acceptance of this revision petition, the impugned judgments dated- 15.04.2010 and 18.06.2011 passed by the trial Court. and Appellate Court respectively arc set-aside and permission is granted to the petitioners to withdraw their suit and file a fresh one, oil the same cause of action in accordance with law but subject to all legal and valid objections to be raised by the respondents therein. The B little bit inconvenience caused to the respondents is compensated by way of costs of Rs, 20 000/-. With the above observations, the case is remitted back to the trial Court for further proceedings at that end. No order as to costs.