Brief facts giving rise to the present petition are that the petitioners filed a suit for declaration in the Court of Civil Judge, Shorkot on 5-12-1990. It was resisted by respondents 1 to 22 who filed their written statements in the Court. The trial Court framed the necessary issues and recorded evidence of the parties. The petitioners had to produce evidence in rebuttal on 14-10-1992 but they filed an application to withdraw the suit with permission to file a fresh one. The application was resisted by respondents 1 to 22. After hearing the learned counsel for the parties the trial Court dismissed the application vide order dated 17-10-1992. The petitioners challenged the same by way of a revision petition which was dismissed by the District Judge, Jhang, vide his order dated 7-11- 1992.
2. The petitioners' learned counsel has urged that the plaint was defective as it did not contain the requisite details of the property purchased by the plaintiffs. Moreover, some averments made in the plaint were not correct and some essential averments were not made. fie further submitted that the plaint could be withdrawn for some defect, omission or incorrect averments made therein.
In this connection he placed reliance on the judgments in the cases of Municipal Committee, Chakwal v. Ch. Fateh Khan and others (PLD 1959 (P.W.) Lahore 535), Bahadur Khan v. Sultan (PLD 1967 Lahore 531) and M/s. Ilam-ud-Din and Sons v. Asghar Ali and another (1970 SCMR 233). He further submitted that a writ petition against an interlocutory order was competent. He placed reliance on the cases of M/s. Shahzad Ice Factory and 2 others v. Special Judge Banking, Lahore and others (PLD 1982 Lahore 92) and Muhammad Farooq and others v. District Judge, Mardan and others (1992 CLC 379).
3. On the other hand the respondents' learned counsel urged that the Courts below did not find any formal effect in the plaint and rightly disallowed the request for withdrawal of the suit with permission to file a fresh one. Mr. A.G. Tariq, learned counsel for respondents No.2 to 5 and 18 to 21 submitted that evidence of the parties had been recorded and at this belated stage permission to withdraw the suit could not be granted. Learned counsel for respondents 2 and 3 (Mr. Iftikhar Ahmad Dar, Advocate) submitted that the writ petition was not competent against an interlocutory order. He placed reliance on the following judgments:
(i) Ghulam Hussain and another v. Malik Shahbaz Khan and another (1985 SCMR 1925).
(ii) Javed Iqbal and another v. District Judge and 2 others (PLD 1987 Lahore 9), and
(iii) Muhammad Siddiq Qazi v. Muhammad Abrahim Khokhar and another (1987 MLD 265).
4. As regards competence of a writ petition against an interlocutory order, it may be observed that generally a writ petition is not entertained against an interlocutory order where the wrong done can be undone in an appeal or revision against the final judgment or decree. However, where the wrong is of such a character as could not be remedied in proceedings arising out of the same suit but would necessitate institution of a fresh suit if the impugned order is struck down then a Constitution petition can be entertained. The judgments cited by the respondents' learned counsel proceed on their own distinguishable facts. In Ghulam Hussain's case a writ petition was not entertained in respect of a matter arising out of a civil suit as the petitioner could avail of the other adequate remedy. The said case pertained to an order allowing the plaintiff to supply the deficiency in the court-fee. The order was reversed in appeal and the High Court refused to interfere in the Constitutional jurisdiction. It was argued before the Hon'ble Supreme Court that the learned Additional District Judge had ignored the latest law declared by the Supreme Court on the question of deficiency in court-fee. The Court was pleased to observe that if the plaint was rejected on the ground of deficiency of court-fee then the plaintiff could have his remedy by way of appeal and the revisional order would not be a bar as it was sufficiently indicated by the High Court in its order. Obviously, where the question regarding the deficiency of court-fee is covered by a direct judgment of the Hon'ble Supreme Court, then the revisional order could not stand in the way of the Courts below particularly when the order of the High Court also indicated so. In Javaid Iqbal's case interference in Constitutional jurisdiction as refused because the matter could be agitated in appeal in case of an averse decision against the petitioners. It was observed that the revisional order passed by the District Judge would not be a bar to reconsideration of the latter regarding closing of evidence dealt with in the revisional order. It was so observed that ordinarily the High Court did not favour interference with interlocutory orders unless there was complete absence, excess or want of jurisdiction in the subordinate Court or Tribunal. Muhammad Siddique Qazi's case had arisen out of rent proceedings and pertained to rejection of an application for summoning certain records. It was observed that the Rent controller had not decide arbitrarily and that in case the final order was passed against the petitioner he would have the remedy by way of an appeal against the said order in which the question of summoning the record could also be considered.
The above-referred judgments pertained to interlocutory orders which could be properly challenged before the appellate Court after final judgment of the trial Court and the wrong done at the bottom level could be ;muddied in appeal. However, in the present case wrong is of such a nature as could necessitate institution of a fresh suit. The impugned order, if found to be arbitrary, illegal or in excess of jurisdiction ought to be eliminated at the earliest to avoid the ordeal of another round of litigation. It was held in S. afar Ahmad v. Abdul Khaliq (PLD 1964 Karachi 149) that although an interlocutory order may be attacked in an appeal against the final decree, yet here errors of jurisdiction have been committed, they should be rectified at the earliest opportunity. The word `jurisdiction' implies power of administering justice according to the means provided by the law and subject to the limitations imposed by law. Where an order is arbitrary or violative of the citations imposed by law or is contrary to the clear precedents of the superior Courts, then it has to be struck down as being in excess of jurisdiction without lawful authority and of no legal effect.
5. Now, I may refer to the judgments relied. upon by the petitioners learned counsel. In the case of Municipal Committee Chakwal, withdrawal of the suit was allowed with permission to file a fresh one due to some lacuna in evidence caused by misconception or oversight. It was observed that the appellate Court could have ordered production of further evidence but if it was ,ought that interest of justice would be better served by a fresh trial, it could ~t be said to have acted illegally or with material irregularity. In Bahadar ban's case withdrawal of suit with permission to bring afresh one was lowed on the ground that there were some incorrect averments in the plaint the regard to the history of the case. In Messrs Ilam-ud-Din's case the defendant had objected that necessary parties were not impleaded in the suit and that a mere declaratory suit was not maintainable.
Therefore, the trial court permitted the plaintiff to withdraw the suit with permission to file a fresh one. The said order was maintained up to the level of the Hon'ble Supreme curt. The Hon'ble Supreme Court was pleased to hold as under:-- "It appears from the written statement that an objection was taken as to the defect of party and it was categorically stated that Mian Ilam--ud-Din representing the said firm was a necessary party to the suit in his personal capacity. It was further alleged that a mere declaratory suit was not maintainable and that the prayer made in the suit was vague and indefinite. In fact, the defendant took the plea that in order to be maintainable the plaint of the suit ought to be amended. All these pleas in the written statement obviously refer to the defects in the frame of the suit."
6. Admittedly the respondents in their written statement had raised the following preliminary objection:- Defendants Nos.2, 3, 18 and 19 had raised the following preliminary objections:-- The above preliminary objections relating to formal defects have not been abandoned by the respondents at any stage. The petitioners also realised that there were a number of formal defects in the plaint and applied for withdrawal of the suit with permission to file a fresh one. They had stated in their application that the learned counsel who had filed the suit had weak eye-sight and could not carefully examine the relevant papers and had given incorrect details of the entries made in different revenue papers, consolidation papers and various orders of the Revenue Officers.
Moreover, some essential documents and orders were not referred to and the details of the land purchased by each petitioner were not accurately given in the plaint. The mere fad that evidence had been recorded was not sufficient to refuse permission to the petitioners to withdraw their suit and file afresh one under the provisions of Order 23, Rule 1 of the C.P.C. The Courts below appear to have acted against the letter and spirit of the provisions of Order 23, rule 1 of the C.P.C. and the precedents of the superior Courts. The procedural provisions should not be allowed to become a stumbling block in the way of doing justice. If the present suit is withdrawn and a fresh suit or suits are allowed to be filed by the petitioners in proper form and with all the necessary details, the same shall be helpful in resolving the controversy between the parties on merits. The technical knock-out aimed at by the respondents shall not be conductive to the' interest of justice. The Courts should be liberal in allowing withdrawal of the suit with permission, to file fresh one if some formal defect, lacuna, inaccuracy omission is found in the plaint. In the present case, apart from other defects it has been incorrectly averred in the plaint that respondent No.l sold the "remaining" land to the defendants. In para. 2 of the written statement filed by defendants Nos.2, 3, 18 and 19 it was firmly asserted that Munir Ahmad Shah, respondent No.l had sold the "disputed land" in their favour and that the plaintiffs had not referred in the plaint to any document of their title regarding the disputed land. Moreover, possession has not been prayed for in the plaint and only a suit for bare declaration has been filed. Therefore, it was essential in the interest of justice to allow the petitioners to withdraw their suit with permission to file fresh suit/suits.
7. For the foregoing discussion, I accept this petition and declare the impugned orders of the Courts below to be without lawful authority and of no legal effect and allow the petitioners' application to withdraw the suit with permission to file a fresh suit/suits, leaving the parties to bear their own costs.