RASAAL HASAN SYED, J.----Order dated 13.5.2016 of the learne d Addl.. District Muzaf fargarh, accepting an application under Order XXIII, Rule 1, C.P.C., allowing withdrawal of suit with permission to file fresh one, has been challenged in this revision petition.
2. Facts as may be relevant for the decision of this revision petition are that a suit for declaration with injunction was filed by late Faqir Ahmad claiming oral sale of land, subject-matter of the suit, in his favour . He is represented by the respondents herein as legal heirs. The suit was contested and finally dismissed vide judgment dated 10.12.2012 of the learned Civil Judge, Muzaf fargarh. In appeal against the judgment and decree dated 10.12.2012 the respondents filed an application unde r Order XXIII, Rule 1, C.P.C., seeking permission to withdraw the suit and to file a fresh one. The learned Addl. District Judge, after attending to the points raised before him, allowed withdrawal of suit with permission to file a fresh suit, subject to payment of Rs.10,000/- as cost. That order is the subject-matter of challenge through the present civil revision.
3. Heard.
4. Facts gleaned from record reveal that the suit filed by late Faqir Ahmad, predecessor of the respondents, was for declaration with consequential relief, based on the plea of an oral sale and alleged payment in pursuance thereof.
A declaration of title was claimed on the basis of oral sale. The suit was contested on number of objections, legal as well as factual. One such objection was that the suit in its existing form could not proceed. The basis of the objection apparently was that alleged oral sale could not confer title as the decla ration could not be allowed and also that appropriate course was to file a suit for specific performance. It appears that during the pendency of the suit an application under Order VI, Rule 17, C.P.C. was filed by the respondents for the amendment in the plaint, to insert the relief of specific performance, which was rejected by the learned Civil Judge, and the revision against the said order was also dismissed. For seeking permission to withdraw the suit, and to file a fresh one, it was specifically claimed that there were formal defects in the suit and that the respondents intended to file suit for specific performance of which they had a right. Further that the application for amendment in plaint was dismissed on 17.2.2016; revision petition filed by the respondent was also declined with the observation that a fresh suit could be filed and in this backdrop the respondents claimed withdrawal of suit with perm ission to file fresh one. It is also observed from the judgment of the learned trial court that while dismissing the suit, one of the reasons that prevailed with the court was that the respondents/plaintif fs had sought a declaration on the basis of an oral agreement to sell which was not maintainable, and that the proper course was to file a suit for specific performance, as a decree for declaration as claimed could not be granted.
5. It appears that in view of such observations and also for the reason that the application to amend the plaint was declined, the respondents filed an applica tion under Order . XXIII, Rule 1, C.P.C. for permission to withdraw the suit and to file a fresh one on the same cause of action which application was allow ed vide impugned order of the learned Addl. District Judge.
6. As per Order XXIII, Rule 1, C.P.C. where the court is satisfied that the suit must fail by the reason of some formal defect or there are sufficient grounds for allowing the plaintif f to institute the fresh suit for the subject-matter or a part of claim, it may on such terms as it thinks fit grant permission to the plaintif f to withdraw from such suit with liberty to institute a fresh suit in respect of the subject-matter or a part of claim. The terms "formal defect" has been subject-matter of consideration in number of cases, where the view taken was that the meaning of the word "defect" could be visualized with reference to a suit framed under C.P.C. and that if it is not arranged in accordance with Order VI, Rules 1 to 4, 14, 15 or Order VII, Rules 1 to 7, C.P.C. then it would be deemed that the suit suffered from defect.
7. In "Muhammad Mansha and others v. Sabir Ali" (1999 SCMR 1782) it was observed by the honourable Supreme Court to the effect that the court had the vested power to permit withdrawal from the suit with liberty to the plaintif fs to institute a fresh suit on the same cause of action on such terms as will be deemed fit and the use of the words "where the court is satisfied" in sub-rule (2) of Rule 1 of Order XXIII, C.P.C., indicates that the court before granting such permission shall satisfy itself as to the existence of grounds upon which, the permission was sought out. In "Sh., Shajar Hussain v. Haji Abdul Majeed and others" (2006 SCMR 913) the august Supreme Court after observing that the impleadment of a party was necessary , granted the request to withdraw the suit to file fresh one on the same cause of action. In "Pehlwan and others v. Haji Muhammad Murad and others" (2005 SCMR 1405 ) it was observed by the honourable Supreme Court that "it is now well-settled that in terms of Order XXIII, Rules 1 and 2, C.P.C. permission to withd raw a civil suit for the purpose of filing a fresh one can be granted by the appellate and the revisional Court at any stage of proceedings. Reference may usefully be made to the cases of Haji Muhammad Boota and others v. Member (Revenue) Board of Revenue Punjab and others (PLD 2003 SC 979), Qamar Zaman and others v. Masammir Shah (2000 SCMR 1730 ) and Ismail v. Fida Ali (PLD 1965 SC 634).. Withdrawal of a suit with, permission to institute another one is not restricted only to the cases of formal defect. The scope of Order XXIII, Rule 1, C.P.C. is wide enough to empower the Court to grant such permission for some other sufficient grounds...". It has been consistently ruled that if the court is satisfied that the suit is likely to fail due to some formal defects which did not go to the root of the case or there are sufficient grounds to allow the permission the court shall have the jurisdiction to exercise a discretion for the grant of permission to withdraw the suit and to file a fresh one. In "Ismail v. Fida Ali and Sayyed Jabal Shabbir" (PLD 1965 SC 634) it was observed by the honourable Supreme Court to the effect that if a suit was liable to be dismissed on account of a legal defect the permission to withdraw to file a fresh one could be granted on oral request.
8. In the instant case, as observed supra, the suit was resisted on number of legal and factual grounds including the one that the suit was not maintainable and that no declaration could be granted on the claim of oral agreement of sale and these objections found favour with the learned trial Judge who in para 9 of its final judgment observed that "...the plaintiff has sought a declaration on the basis of oral agreement to sell which is not maintainable. The proper mode for the plaintiffs was to file a suit for specific performance. No decree for declaration as sought could be granted in the subject-matter as a declaratory decree under section 42 of Specific Relief Act, 1877 could be passed for declaring a pre-existing relief , but could not create a new right..." . In the instant case the request of plaintif fs/respondents to amend the plaint by inserting a relief of specific performance under Order VI, Rule 17, C.P.C. was not acceded to, the revision petition filed against the same was also declined with the observation that fresh suit could be filed. In this scenario, when as per petitioners themselves, suit was suffering from formal defect, the request to amend the plaint was objected to and was declined and the revision petition was dismissed with the observation that fresh suit could be filed, there were sufficient grounds for the grant of permission to withdraw the suit so as to file a fresh one. The order of the learned Addl. District Judge granting such permission does not suffer from any error of law. Discretionary jurisdiction has been exercised in this case on legal, cogent, and tenable basis, hence no case is made out for interference in the impugned order .
9. For , the reasons above, the revision petition is dismissed .