SABIT ULLAH KHAN, J.- Through the instant revision petition, the petitioners have assailed the judgment/order of the learned Additional District Judge/Izafi Zilla Qazi, Chitral Lower, dated 09.07.2024, whereby, their appeal was dismissed and consequently, the judgment/order dated 12.08.2023 of the learned Civil Judge-II/Illaqa Qazi, Chitral Lower, dismissing the application of petitioners for withdrawal of the suit with permission to bring a fresh one, was maintained.
2. Brief but essential facts of the case are that the petitioners/plaintiffs filed a representative suit for declaration as well as permanent injunction to the effect that the suit property situated at Munoor Garam Chashma, described in Zamima `Alif annexed with the plaint, is their ancestral ownership in possession and that interference of the respondents/defendants in the suit property, in absence of the petitioners/ plaintiffs, is illegal and unlawful. The respondents/ defendants appeared and contested the suit through their written statements. During pendency of the suit, the petitioners/plaintiffs submitted an application before the learned trial Court for withdrawal of their suit with permission to bring a fresh one on the ground of formal defects. After hearing the arguments, the learned trial Court dismissed that application vide order dated 12.08.2023, followed by the order of the learned appellate Court dated 09.07.2024, through which appeal of the petitioners/plaintiffs was dismissed. Feeling aggrieved therefrom, the petitioners has approached to this Court through the instant revision petition.
3. Arguments heard and record perused.
4. Learned counsel appearing on behalf of the petitioners submitted that the judgments/orders of both the learned Courts below are violative of the provisions contained in Order XXIII Rule 1 CPC and both the Courts below have exercised their jurisdiction illegally, therefore, the impugned judgments/orders arenot sustainable. He also contended that the petitioners sought permission for withdiawal of the suit on the ground that some formal defects have occurred due to non-arraying the party of Provincial Government, which was necessary to reach at the right conclusion and to meet the ends of justice and to also avoid multiplicity of the proceedings.
5. After scanning record of the case, it appears that the petitioners submitted an application before the learned trial CoWI, seeking therein to withdraw their suit with the permission to file a fresh one.
The main ground of the petitioners in their application is that there is a formal defect in their suit, due to which the suit is technically failed and there is every likelihood of its dismissal, therefore, they want to file a fresh suit to remove all the discrepancies in the plaint. There is no specific reason available in the application to believe that there is serious formal defect existing in the plaint and this aspect of the case was disbelieved by both the Courts below. It is well-settled principle of law that the party who wants to withdraw his suit with the permission to file a fresh suit, must show that there is a formal defect in the suit, which could result in failure of the same, if such defect was removed or rectified by the amendment of the plaint, permission to file a fresh suit could not be granted.
The moot determination is the implication of the Order XXIII Rule 1 CPC. For ready reference, Rules 1 and 2 of Order XXIII CPC are reproduced as below: "ORDER XXIII.-- Withdrawal and Adjustment of Suits:
1. 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.
(2) Where the Court is satisfied a) that a suit must fail by reason of some formal defect, or b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim."
From bare perusal of the above provision of law, it is clear that in terms of sub-rule (1), a plaintiff is always at liberty to withdraw a suit or abandon part of his claim at any time against all or any of the defendants, after institution of the suit, but sub-rule (2) imposed certain restrictions on such withdrawal. If the petitioners want to institute a fresh suit in respect of the same subject matter or part thereof, there should be some formal defects or some other sufficient grounds, allowing him to institute a fresh suit.
7. Another important aspect of the case is that the case, pending before the learned trial Court, is ripe and today is fixed for announcement of judgment on the main case. All the legal proceedings have been completed and only arguments on the main case are required to decide the same. On this score alone, the purpose of filing application for withdrawal of the suit and to file a fresh one, is based on mala fide and to frustrate the proceedings pending before the learned trial Court, therefore, at this belated stage, the request of petitioners could not be acceded. This being so, when the petitioners have failed to point out any formal defect due to which their suit may likely to fail or any other sufficient grounds, necessitating withdrawal of the suit with permission to file a fresh one, therefore, both the Courts below have rightly declined application of the petitioners.
8. For what has been discussed above, the instant petition, having no force, is hereby dismissed in limine.