JUDGMENT CH. MUSHTAQ AHMAD KHAN, J. Facts of the case out of which this Civil Revision has arisen are that Hussain Bakhsh and other plaintiffs who are respondents before this Court filed a suit for perpetual injunction against Mana and oilier defendants who are petitioners before this Court. They claim title on the basis of a Court decree dated 17.6.1968. The suit was contested by the petitioners.
1.Earned trial Court settled various issues and after recording of evidence set down the ease for judgment on 17,1.1976. On that date, the judgment was not announced mid the case was adjourned to- 30.1.1976. Before the announcement of the judgment in the case, an application was moved by the plaintiffs-respondents for withdrawal ol the suit with a permission to file a fresh one, as according to them there were certain formal defects in the case. The application was allowed by the learned trial Court on 3.2.1976. Consequently, the suit was dismissed as withdrawn with a permission to file a fresh suit on the same cause of action. This judgment was challenged in revision before District Court which was accepted vide order dated 16.3.1976 on the ground that the application filed by the plaintiffs did not disclose as to what were the formal defects which were to be removed nor the order of the learned trial Court reflected satisfaction of the Court with regard to the factum of formal defects in the case as a result whereof the suit might fail. Consequently, the revision was accepted and the suit was remanded to the trial Court for decision on merits.
2. Learned trial Court vide judgment and decree dated 30.9.1976 dismissed the suit. Aggrieved of this judgment and decree, the defendants- respondents filed regular first appeal which was being- heard by the learned Additional District Judge, Mianwali, on 17.5.1976 on which date the appeal was fixed for hearing, both the learned counsels for present petitioners as well as the learned counsel for the respondents made following statements:- i-J*>*ci?*(U^'d" ^{J/) J'\fciy {{ URDU TEXT }} Consequently, the learned First Appellate Court vide order dated 17.5.1977 accepted the prayer of the plaintiffs as per provisions of Order XXIII Rule 1(3) ('.P.C. And allowed the suit for to be withdrawn with a permission to file fresh one on .Payment of Rs. 50/- as COSL Order dated 1^.5.1977 .Is reproduced as under:- #tbsJ if l#to#tbs/; LJBF, ^ u j/> J?'^ ^ Uf U1 for \r ZV/[ !~~ij 50/= j{^ (J-/,J ki- {{URDU TEXT }} This order has been challenged in this Civil Revision by the defendants who were respondents before the learned First Appellate Court.
3. Mr. Allah Wasaya Malik, Advocate, has appeared on behalf of the petitioners whereas Hafiz Tariq Nasim, Advocate has appeared on behalf of respondent No. 1. Leamed counsel for the petitioners has argued that as previously a similar order passed by the learned trial Court was set aside by the learned First Appellate Court, the respondents could not have been allowed to withdraw the suit with a permission to file fresh one without disclosing the formal defects which Were sought to be removed as result whereof fresh suit could be permitted to be filed. Learned counsel contended that even now, the plaintiffs-respondents have not disclosed any formal defects which are sought to be removed nor the learned first Appellate Court has applied mind to the facts and circumstances of the case determining the formal defects as a result whereof fresh suit can be allowed to be filed, therefore, the order passed by the learned First Appellate Court is without jurisdiction inasmuch as no jurisdiction vests in the Court to allow withdrawal of a suit with permission to file a fresh suit without determining the exact formal defects which are sought to be removed in a fresh suit. Learned counsel contends that the suit was being hotly contested and a favourable decree having been passed in favour of the respondent, it is not understandable as to under what circumstances, the same learned counsel who had previously got a similar in appeal could make a statement of consent before the learned First Appellate Court on the basis whereof the impugned order has been passed.
4. Hafiz Tariq Nasim, Advocate, has appeared on behalf of respondent No. I and has vehemently opposed this civil revision. Learned counsel contends dial the impugned order having been passed with consent of the learned counsel for both the parties, no interference is possible in exercise of the discretionary provisional jurisdiction of this Court. Learned counsel contends that the impugned order cannot be said without jurisdiction inasmuch as the statement was made that there are certain formal defects which are to be removed in fresh suit. This statement was accepted by the learned counsel for the petitioner and therefore on the basis of this statement the impugned order was passed. There was no occasion to disclose the formal defects as the statement was never controverted by the other side. The petitioners cannot, therefore, be allowed approbate and reprobate and hence the impugned order is quite valid and lawful and is not liable to be interfered with in this revision petition.
5. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record. It stands established from the record that the impugned order has been passed on the basis of the statements made by the learned counsel for both the parties, who were competent to make such statements. Consequently, it is a consent order. Revisional jurisdiction is discretionary in nature and cannot be exercised in favour of a person who wants to resile from his commitment. Statement of the learned counsel for the petitioners is binding upon them and therefore they cannot now tum round and say that the suit should not have been allowed to be withdrawn with a permission to file fresh one and the impugned order cannot be said to have been passed without a lawful authority. Provisions of Order XXIII Rule 1 C.P.C, are reproduced as under for ready reference.- Order-XXIII (1) "At any time after the institution of a suit the plaintiff may, as Rule-1 CPC. 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.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others".
A perusal of the afore-mentioned provision shows that as per Order XXIII Rule 1 clause (b) permission to withdraw with a view to file fresh suit can be granted even for other sufficient grounds. Therefore, it is always not necessary to point out and determine the formal defects specifically while making a prayer to withdraw a suit and to file a fresh one. It has been held in case of Sheo Kumar Dwivedi and others v. Thakurji Majaraj Brijman and another (AIR 1959 Allahabad 463) that if evidence is not available for no fault of a party, it will be sufficient ground to allow permission to withdraw a suit and file a fresh one. In case of Gurprit Singh and another v. Punjab Government (AIR 1946 Lahore 429), it has been held that if a plaint is imperfectly drafted on account of blunder of counsel, it will be sufficient ground to allow withdrawal of the suit with a permission to/ile afresh one. In case of Municipal Committee, Chakwal v. Ch. Fateh Khan and others (PLD 1959 Lahore 535), it has been held that even if case of lacuna in evidence which has arisen out of misconception, it will be a fit case for grant of permission to withdraw the suit and to file a fresh one under clause (b) referred to above, and as such, the impugned order besides having been passed with consent is also lawful and therefore, no interference is called for in this civil revision.
Resultantly, the revision petition is dismissed with costs throughout.