1. The revision petition is directed against an order dated the 17th November 1970 passed by Civil Judge, Pakpattan, allowing the respondent to withdraw the suit with permission to file a fresh suit.
2. The respondents had filed a suit for decoration that the petitioner had no right to recover rent of plot No. 52/143 and shops bearing Nos. 56/143, 55/143 and 54/143 on the plea that the plaintiffs- respondents had secured the site along with its building and had turned the same into shops. It was also alleged that the petitioner first began to recover tehbazari and subsequently got stamps executed treating the plaintiffs-respon--dents as tenants and did not allow them to secure ownership rights under scheme No. VII of the Displaced Persons (Compensa--tion and Rehabilitation) Act, 1958 although the petitioner was never allotted this area by any authority.
3. In reply the petitioner raised inter alia the following preliminary objections:-
(1) The plots were secured by plaintiffs on rent and they bad executed rent deeds in favour of the defendant-petitioner. They were, therefore, estopped from challenging the entitle--ment of the defendant-petitioner.
(2) The suit was bad for miss-joinder of parties and causes of action.
(3) The plaintiff had taken inconsistent pleas.
4. The following preliminary issues were framed on 20th October 1969:-
(1) Whether the plaintiffs were estopped from bringing the suit? O. P. D.
(2) Whether the suit is bad for miss-joinder of parties and causes of action? O. P. D.
(3) Whether the suit is bad for inconsistent pleas, if so, to what effect? O. P. D.
5. On 17th November 1970, an application under Order XXIII, rule 1 (2) of the Code of Civil Procedure was submitted by the plaintiffs-respondents alleging that there were some formal defects in the suit as was apparent from the preliminary issues and, therefore, there was sufficient ground for withdrawal of the suit with permission to file another suit.
6. It will be seen from the application that there was no allegation that the formal defects were of the character on account of which the suit must fail and even the details of the formal defects were not given and the reference was made: generally and rather hereby to the issues already framed.
7. The same day the learned Civil Judge allowed the application by a short order which is reproduced blow:- "Counsel of the parties are present. The application is allowed and the applicants are permitted to file a fresh suit as desired subject to the payment of Rs. 30."
8. It appears that soon after this withdrawal, the same day, a fresh suit was filed in which it was admitted that the plaintiffs executed the rent notes in favour of the defen--dants, i.e. The present petitioner, but a new plea was taken that this was done under duress and compulsion. In the first suit, the allegation was that plaintiffs Nos. 1 to 3 were in possession of shops since 1964 and plaintiff No. 1 was in possession of plot No. 57/143 since 1956. In the second suit, it was alleged that the plaintiffs were in possession of the sites in the shop since time immemorial and had constructed shops at their own expense and had been carrying on business. No indication in the subsequent suit was given to the effect that property was evacuee and the subsequent suit was, in fact, based on an altogether new plea, i. e. Of custom. These differences between the two plaints have been reproduced by me. On the basis of a comparative study made in the presence of the learned counsel for the parties.
9. The learned counsel for the petitioner had contended:-
(1) There is nothing to show how the suit suffered from any formal defect and the learned Civil Judge had not applied his mind to the question whether there was, in fact, a formal defect which would result in the dismissal of the suit.
(2) Miss-joinder certainly is a formal defect but it is not even remedied in the subsequent suit.
(3) Estoppel does not pertain to procedure and formal defect can only be procedural.
(4) For inconsistency of plea the suit was not liable to fail. The inconsistency could be removed and defect rectified under Order VI, rule 5 or by an amendment under Order VI, rule 17.
10. The contentions of the learned counsel for the petitioner have force. As stated above, there is only a general plea, which is also sufficiently vague, that there were some formal defects in the suit, but it was not clarified as to what those formal defects were and whether they were defects on account of which a suit must fail. Order XXIII, rule 1, sub-rule (2) provides that 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.
11. 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. The application is apparently 1972 couched in terms to bring it within the scope of clause (a) i.e., that the suit must fail by reason of some formal defect, but the allegations in the petition for with--drawal do not show the formal defects nor is it clear that the formal defects if any one of such nature that the suit must fail. Even the order of the learned Civil Judge does not disclose that he was satisfied that there was any formal defect in the case for which reason the suit must fail. It is, therefore, apparent that the Civil Judge has acted illegally and with material irregularity in the exercise of his jurisdiction by passing an order of withdrawal of the suit with permission to file, another suit without considering the above-noted objections. Some indication as to what exactly is a formal defect has been given by their Lordships of the Privy Council in Watson v. The Collector of Rajshahye (13 M I A 160): "There is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of miss-joinder either of parties or of the matters in contest in the suit, to cases in which a material document has been rejected because it has not borne the proper stamp and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon a issue joined, and the party having failed to produce the evidence which be was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them."
12. In this authority a distinction has been drawn between cases in which on account of defect a suit must fail, but it may be open to the plaintiff to file another suit, for example, suits which may fail by reason of some point of form; and the suit which bar the right of party to litigate the matter in a fresh suit. Thus permission to file another suit cannot be given where the suit is barred by limitation.
13. Ludhomal Purtomal & Co. v. Secretary of State (AIR 1918 Sind 6). Applying this principle to the issues framed in the present case it will be clear that a bar of suit by the principle of estoppel will not be covered by the term 'formal defect'.
14. On the question of miss-joinder of parties, it was admitted by the learned counsel for the petitioner that this was a formal defect, but he submitted that even the subsequent suit suffers from the same defect and no steps have been taken to cure it.
15. The learned counsel for the respondent also was conscious of this difficulty about the issue of estoppel not being a formal defect and the plaintiff-respondent not having taken any steps to cure the defect of miss-joinder of parties and causes of action in the subsequent suit, He, therefore, confined his argument to Issue No. 3 i. e. The issue relating to question "Whether the suit is bad for inconsistent pleas" and submitted that this was the formal defect and in any case there was sufficient reason for allowing the withdrawal on the basis of this issue. He had, however, to admit that the petition for withdrawal of the suit was not based upon the plea of sufficient cause but only upon there being a formal defect. I do not see how an inconsistency of plea can be deemed to be a formal defect for which the suit must fail. It was at the most a type of defect which could be cured either by recourse to Order VI, rule 5 or Order VI, rule 17 of the Code of Civil Procedure.
16. The learned counsel for the respondent further submitted that the discretion exercised by the lover Court could not be interfered with in Revision. But this is not a case of exercise of discretion as neither the petition of the plaintiffs for withdrawal alleged that the formal defects were of such a nature that suit must fail nor did the learned Civil Judge apply his mind to the question whether, in fact, there was some formal defect of the nature described in Order XXIII, rule 1, sub-rule(2) (a) nor is there anything in the judgment to suggest that the learned Civil Judge was satisfied that there was a formal defect of that nature. Certain authorities were relied upon for the purposes of showing that a formal defect should not be enquired into or even if the application was collusive it should have been allowed, but these authorities are not applicable in view of the above discussion.
17. I, therefore, accept the petition, set aside the order dated the 17th November 1970, passed by the learned Civil Judge, Pakpattan, and direct the suit to be decided according to law. The respondents, will pay the costs of this petition to the petitioner.