Dr. Khurshid Iqbal, J.-
1. This revision petition has been filed by Nazir Ahmad and 10 others (the petitioners) against the orders/judgments/decree of the learned Additional District Judge/Izafi Zilla Qazi, Chitral Lower, camp Court at Darosh and learned Civil Judge/Illaqa Qazi-II, Chitral at Darosh, passed on 24.06.2022 and 20.11.2019 respectively, vide which, he accepted the application of respondents No.1 to 8 for withdrawal of their suit with permission to file a fresh one.
2. Facts concisely are that on 14.04.2015, the respondents No.1 to 8/plaintiffs including one Mst.
Nasima Bibi, had instituted a civil suit against the petitioners/defendants and the respondents No.9 to 18/defendants. The suit pertained to their shari shares in the legacy of Nazir Khan, their father.
Nazir Khan was the son of Mst. Tokal Bibi, daughter of Jandi Khan. The petitioners-defendants and some others contested the suit by submitting their written statements. The learned trial Court framed issues and some partial evidence of the plaintiffs/ respondents were recorded. On 23.10.2019, the plaintiffs/respondents No.1 to 8 submitted an application under Order XXIII Rule 1, C.P.C. for withdrawal of their suit with permission to file a fresh one on the grounds that certain portion of the property was not mentioned in the suit, and that some persons need to be arrayed parties. The application was allowed by the learned trial Court vide order and decree dated 20.11.2019. The petitioners assailed the same in appeal before the learned appellate Court, however, the same was dismissed.
3. Arguments of the counsel for the parties heard and perused the record.
4. The sole question for determination is that whether the non-mentioning of certain other portions of the property in the legacy of her predecessor and the non-arraying of necessary parties to the suit would amount to formal defect within the meaning of Order XXIII Rule 2, C.P.C., warranting withdrawal of the suit with permission to bring a fresh one. The underlying principle of the law contained in Order XXIII Rule 2(a), C.P.C., is that there must be a formal defect in the suit. The phrase 'formal defect' has not been defined in the Civil Procedure Code, 1908. It is held by the higher Courts that a formal defect is one which goes to the roots of a case, which if remains intact, is bound to cause failure of the suit. In a recent case Muhammad Yousaf and others vs Nazeer Ahmad Khan (deceased) through LRs and others (2021 SCMR 1775), it was observed that a formal defect mean any kind of defect that has no impact on the merits of the case. The court further observed a defect that is material and substantial, going to the roots of the case, would not amount to formal defect.
5. The Court also observed that "where a defect is removable or rectifiable by amendment of the plaint, permission to file a fresh suit cannot be granted. Finally, where a defect which goes to the root of the case and is not merely a formal defect, permission to file a fresh suit would amount to allowing the plaintiff to retrace his steps plug the loopholes in the earlier suit and file a different case with different/additional parties and a totally different relief. These to our mind are not steps that could by the stretch of the language be termed as removal of formal defect. See Muhammad Boota v. Member (Revenue), Board of Revenue (PLD 2003 SC 979), Muhammad Ka#m Ziauddin Durrani v. Muhammad Asim Fakharuddin Durrani (2001 SCMR 148), Amjad Rashid Khan Malik v. Shahida Naeem Malik (1992 SCMR 485) and Ali Muhammad v. Rahmatullah (1990 SCMR 913). As such, neither the suit can be permitted to be withdrawn nor permission to file a fresh suit be granted on that score."
6. In a 1996 case title as Dilbar Khan vs Said Akbar, (1996 CLC 1178 [Peshawar], it was held: "3. A suit can be allowed to be withdrawn with permission to file a fresh suit on the same cause of action provided it is likely to be dismissed on the basis of some formal defect having been noticed. Such formal defect as mentioned in the application itself is that the disputed house is in fact situated in Khasra 1167 whereas Khasra 1166 in the plaint had inadvertently been mentioned [...]."
7. Coming to the case in hand, the so-called defects pointed out by the respondent No.1 in her suit could have been rectified through amendment in the plaint. This drags the case in hand to Order VI Rule 17, C.P.C., which reads as under: "17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
8. An amendment could be sought when it is necessary to determine the real matter in controversy. Such an amendment may be allowed provided it cause no prejudice to the other party and does not introduce a new cause of action to alter the nature of the suit and where it is just and necessary.
9. During the course of the arguments, learned counsel for the respondent No.1 informed that he has filed the fresh suit. He added that the petitioners, however, have not filed their written statement till date.
10. Pursuant to the above discussion and while applying the legal principles referred to above, the conclusion that could be drawn is that there was no formal defect in the suit. In other words, the defects were worth rectifying by means of amendment. Hence, the learned courts below have not exercised the jurisdiction vested in them by allowing withdrawal with permission to bring a fresh suit. In this view of the matter, the impugned orders and judgments by both learned Courts below are exceptional. Thus, these are set aside. Resultantly, the former suit stands revived and is deemed to be pending. The respondent No.1 if so advised, may seek amendment therein to the extent of mentioning of certain other portions of the property in the legacy of her father and arraying necessary parties.