NAEEM AKHTAR AFGHAN, J. In the instant constitution petition, the peti-tioner (plaintiff) has prayed as follows:-- "It is, therefore, respectfully prayed that this Hon'ble Court may graciously be pleased to call the record from the court below and after perusal of the same, set aside the impugned order dated 10.03.2020 passed by learned Addl. District Judge-IV/Model Civil Appellate Court, Quetta, and in consequences thereof the order dated 16.12.2019 be ordered to be upheld, allowing the proposed amendments in the plaint in favor of petitioner, along with any other relief as deemed fit and proper in favor of petitioner, in the interest of justice, equity and fair play".
2. The petition has been contested by respondent No.1 (defendant No.1) without filing counter affidavit.
According to contents of the petition, the whereabouts of respondent No.2 (defendant No.2 Muhammad Azam/ son of the petitioner) are not known and he is missing since 19861Mafooq- ulKhabar due to which publication was made for respondent No.2 in Daily Bakhabar dated 05.12.2020.
3. During pendency of the instant constitution petition, the petitioner submitted C.M.A. No.1653/2020 on 22.07.2020 under Order XXIII, Rule 1, C.P.C. soliciting permission of this Court for withdrawal of the suit with permission to file the same afresh on the ground that the suit filed by the petitioner is suffering from formal defects.
4. The above application has been contested by respondent No.1 by filing reply on the ground that the suit filed by the petitioner is not suffering from any formal defect; that the petitioner has made certain admissions in his plaint and the petitioner is attempting to deny the same by filing the suit afresh.
5. After hearing learned counsel for the parties and learned A.A.-G., we have perused the available record which reveals that initially in November 2017, the petitioner and his son Shahzaib (corrected as Shehbaz Khan by the revisional Court), filed suit for Declaration, Specific Performance of Agreement, Possession and Permanent Injunction against respondents Nos.1 and 2 and Tehsildar City Quetta on the basis of Iqrarnama dated 19.01.2012.
6. During pendency of above suit, the petitioner submitted an application under Order VI, Rule 17, C.P.C. for amendments in different paras of the plaint which was contested by respondent No.1 on the ground that the proposed amendments will change the entire complexion and character of the suit; that the petitioner wants to set up a new cause of action; that the petitioner intends to resile from the admissions made in the plaint.
7. It reveals that without affording opportunity of hearing to respondent No.1 the application filed by the petitioner under Order VI Rule 17, C.P.C. was accepted by learned Civil Judge-III, Quetta (hereinafter "CJ-III Quetta'') vide order date 18.06.2018.
8. In pursuance of above order passed by CJ-III Quetta, the petitioner filed 1st amended plaint dated 10.07.2019 with amendments in different paras of the plaint.
9. The order dated 18.06.2018 passed by learned CJ-III Quetta on the application of the petitioner under Order VI, Rule 17, C.P.C. was challenged by respondent No.1 by filing Civil Revision No.71/2019 before learned Additional District Judge-IV Quetta (hereinafter "ADJ-IV Quetta").
10. While accepting revision petition vide order dated 18.06.2019, learned ADJ-IV Quetta remanded the matter to learned CJ-III Quetta for deciding the application under Order VI, Rule 17, C.P.C. afresh after affording opportunity of hearing to the parties.
11. After hearing learned counsel for the parties, learned CJ-III Quetta accepted the application of the. petitioner under Order VI, Rule 17, C.P.C. vide order dated 16.12.2019, operating para whereof reads as follows:-- "6. In a nutshell, the first suit clearly shows, parties are in conflict on agreement dated 19.01.2012. As a result, Mutation No.2387 came into existence. Now plaintiff seeks cancellation of same agreement. A perusal whereof shows, main issue between the parties are agreement dated 19.01.2012 and Mutation No.2387. Even prayer clause shows the same fact, reason for filing the amended title has weight because parties should not suffer by mistake committed by counsel.
Similarly, instant matter is at initial stage and no any prejudice would cause to either party if amendment allowed. Reliance made by defendant that amendment should not change the nature and complexion of instant matter. Further, said amendment clear the core issue and not change the nature of suit and proposed amendments are necessary for arriving at just conclusion".
12. The above order passed by learned CJ-III Quetta was challenged by respondent No.1 before learned ADJ-IV Quetta by filing Civil Revision No.123/ 2019 which was accepted vide impugned judgment dated 10.03.2020, operating paras whereof read as follows: "6. Record shows that the plaintiff/respondents Nos.1 and 2 have sought the amendment in the title of the plaint, in the body of the suit in Paras Nos.4 and 6 and in the prayer clause. The proposed amendment proves that the same will change the nature of the suit but the learned trial court has accepted the application without discussing this aspect of the case by simply holding that since the matter is at initial stage so the application is accepted. The proposed amendment proves that the petitioner are resiling from an admission made in the plaint. Amendment in the pleadings was not permissible where on account of an omission to raise a plea in the pleadings, valid rights had accrued to the opposite party. Court was also under a duty to watch the bona fides/mala fide of the party seeking the amendment (2012 CLC 1403). Intention of the party seeking amendment was a relevant factor for allowing or refusing the request. While allowing amendment of pleadings, the court should keep in view the admission, which had been made by the parties therein (pleadings). Amendment should not be allowed, where it tantamount to the withdrawal of an admission or where it obliterated an admission (PLD 2013 Supreme Court 239).
Pleadings proves that the plaintiff/respondents Nos.1 and 2 are trying to resile from an admission made in the pleadings about the execution or an amendment and thereby a right has been accrued in favour of adverse party. Party could not wriggle out of his own admission (2010 CLC 1941). Learned trial court has fallen into an error by allowing the proposed amendment vide impugned order in an illegal and irregular manner and in the circumstances the same is not sustainable.
7. As a consideration to the discussion made here in above, the petition in hand is accepted by setting aside the impugned Order except the correction of name of the respondent/plaintiff No.2 which shall be rectified in the body of the plaint as Shehbaz Khan instead Shah Zaib.
13. While filing the instant constitution petition, the petitioner had arrayed his son (plaintiff No.2) as respondent but vide order dated 20.10.2020 his name was deleted due to his death during pendency of the proceedings and amended title of the constitution petition was filed on 16.11.2020.
14. Contents of the original plaint (dated 30.11.2017) filed by the petitioner reveal that the petitioner asserted his claim and accrual of cause of action on the basis of agreement dated 19.01.2012 executed by him with respondent No.1, but perusal of the agreement dated 19.01.2012 and contents of the original plaint reveal that the relevant facts pertaining to Iqrarnama dated 19.01.2012 have not been pleaded in the original plaint. Contents of the original plaint also reveal of defect and ambiguity in description of the suit property as well as in para-8 pertaining to the cause of action.
15. The petitioner tried to rectify the above defects by amending different paras of the original plaint in pursuance of order dated 18.06.2019 passed by learned CJ-III Quetta but the revisional court has rightly dismissed the application of the petitioner under Order VI, Rule 17, C.P.C. as the amendments made in the original plaint have changed the nature and complexion of the suit as well as the cause of action. Amendment changing nature and complexion of the suit is not permissible under Order VI, Rule 17, C.P.C.
16. It reveals that the original plaint has not been properly drafted by the learned counsel for the petitioner according to the accrual of cause of action with reference to Iqrarnama dated 19.01.2012 and it is also defective with regard to description of the suit property.
17. Misjoinder of cause of action/ failure to disclose proper cause of action, insufficient description of the suit property and defective frame of the suit are held formal defects to attract provision of Order XXIII, Rule 2(a), C.P.C.
The above formal defects cannot be remedied by allowing amendment of the plaint under Order VI Rule 17, C.P.C.
18. Order XXIII, Rule 2(b), C.P.C. also mentions about "other sufficient grounds" for allowing the plaintiff to institute a fresh suit. The term "other sufficient cause" is wider than the term "formal defects".
Incorrect averments made in the plaint and the plaint having not been properly drafted by a lawyer is held as sufficient grounds for allowing the plaintiff to withdraw the suit with permission to file the same afresh under Order XXIII, Rule 2, C.P.C.
19. The suit filed by the petitioner is at initial stage and the parties have not yet led evidence.
20. In view of cause of action still subsisting for the subject. property, the petitioner cannot be held remediless and he cannot be non-suited on the basis of mere technicalities as the law favours adjudication on merits.
Order XXIII, C.P.C. prevents technicalities from defeating justice.
21. The admissions/averments made by the petitioner in the original plaint (as alleged by respondent No.1) can be confronted to the petitioner by respondent No.1 in the proceedings of subsequently filed suit.
22. In view of the formal defects in the original plaint, there is every likelihood that the suit filed by the petitioner will fail. There exist sufficient grounds for allowing the petitioner to file the suit afresh by properly pleading the relevant facts with reference to Iqrarnama dated 19.01.2012, with correct description of the suit property and with correct accrual of cause of action.
23. Though in the title of C.M.A. No.1653/2020, the petitioner has not correctly mentioned the relevant provision i.e. Order XXIII, Rule 2, C.P.C. and he has wrongly mentioned the provision of Order XXIII, Rule 1, C.P.C. but in the prayer clause of C.M.A. No.1653/2020, the petitioner has prayed for withdrawal of the suit with permission to file the same afresh. In view of its prayer clause, C.M.A.
No.1653/2020 is considered as an application of the petitioner under Order XXIII, Rule 2, C.P.C.
24. Mere non-mentioning of correct provision is not fatal to the application if power to pass such an order is available with the Court.
25. The cases of Muhammad Kazim Ziauddin Durrani v. Muhammad Asim 2001 SCMR 148 and Abaid Ullah Malik v. Additional District Judge PLD 2013 Supreme Court 239 relied upon by learned counsel for respondent No.1 are distinguishable and same are not attracted to the facts and circumstances of the instant case.
For the above reasons, C.M.A. No.1653/2020 filed by the petitioner is accepted. The suit (dated 30.11.2017) filed by the petitioner is allowed to be withdrawn with permission to the petitioner to file the same afresh subject to cost of Rs.10,000/-. Constitution Petition No.464 of 2020 is disposed of in the above terms.