Two Revision Petitions (306 of 1997 and 326 of 1997) have been preferred on behalf of Ch. Muhammad Ali and 24 others and Sardar Muhammad Asim Fakharuddin and 4 others arising out of the same judgment assailing the order passed by learned Civil Judge-1, Quetta, dated 31-10- 1997 whereby the application under Order 23, Rule 1, C.P.C. Submitted by Sardar Muhammad Asim Fakharuddin and others has been accepted. I intend to dispose of both the above referred to appeals (revisions) by this order of mine.
2. Briefly stated the facts of the case are that a suit for declaration and injunction was filed by respondents in the Court of learned Civil Judge-I, Quetta on 7-6-1996 and subsequently, an amended suit was filed on 14-11-1996 with the following prayer:--
(I) declaring that the plaintiffs having beneficial interest in the properties referred to in para. 1 of the plaint are entitled to protect the same and the defendant No.1 has no authority to dispose of the same in any manner, whatsoever, on account of his unsoundness of mind as well as the properties being ancestral one;
(II) That the sale transaction carried out by defendant No. l with defendants Nos.2 to 5 are illegal, void, without lawful authority and as the defendant No. l is a person of unsound mind;
(III) That the defendant No. l be permanently restrained from in any way disposing of alienating or disposing the ancestral property referred to in para. 1;
(IV) The defendant Nos.6 to 30 be directed not to carry out any sale transaction in respect of the ancestral properties referred to in para. 1 and that the sale transaction in favour of the defendants Nos.2 to 5, and the so-called agreement being frivolous, fictitious and concocted one, be cancelled and directed to be restored as it existed;
(V) Any other relief as may be deemed fit and appropriate in the circumstances of the case may oleo be granted alongwith cost of the suit.
Dated Quetta, November 14, 1996. Plaintiffs."
The suit was contested by the petitioners by raising various legal and factual objections and the said suit was allowed to be withdrawn by the learned Civil Judge-I, Quetta and application submitted under Order 23, Rule 1, C.P.C. By the respondents has been accepted, hence this revision.
3. Heard Messrs Basharatullah and K.N. Kohli, Advocates on behalf of petitioners, Mr. H. Shakeel Ahmed, Advocate appeared on behalf of respondents.
4. I have carefully examined the respective contentions as agitated on behalf of petitioners and for respondents in the light of relevant provisions of law and record of the case. It is an admitted feature of the case that at first instance suit was filed by the respondents on 7-6-1996 and thereafter, an amended suit was filed on 14-11-1996 and subsequently, an application for withdrawal of the suit was moved which has been accepted as mentioned hereinabove. The pivotal question to be decided seems to be as to whether the said suit can be withdrawn in view of provisions as enshrined in Order 23, Rule 1, C.P.C. It is well-settled by now "that the grounds on which permission may be given are, that the suit must fail by reason of some formal defect, or that there exist sufficient grounds for allowing the plaintiff to institute a fresh suit. The Court cannot allow withdrawal unless these conditions are fulfilled" PLD 1985 SC 376. It is further, settled by now that "there is no general power in Courts to allow withdrawal with liberty to institute a fresh suit and it cannot be allowed on the ground that plaintiff has failed to prove his case and besides that it is mandatory duty of the plaintiff to point out formal defect in a categoric manner leaving absolutely no doubt and mere vague assertion would not be sufficient to constitute formal defect". PLD 1982 SC 254. It is worth mentioning that where permission is given in spite of absence of grounds mentioned in clause (a) or (b) the order is without jurisdiction and can be got set aside in revision.
PLD 1982 SC 254, 1984 CLC 2886. The case in hand has been examined in the light of criteria as mentioned hereinabove and I am of the considered opinion that neither any formal defect could be pointed out nor there is other sufficient ground for allowing the respondents to withdraw the suit with permission to institute fresh suit. The respondents should have approached the Court at the earliest opportunity without any loss of time as they were quite conscious of the formal defect since long as the alleged gift deed was executed m favour of their mother a few years back and this ground could have been agitated well in time but no step whatsoever was taken at the opportune moment and they remained mum without any lawful justifiable cause. In such circumstances the permission to withdraw the suit would certainly be in contravention of the object and spirit of Order 23, Rule 1, C.P.C. In this regard I am fortified by the dictum laid down in 1971 DLC 806 + PIP 1966 (W.P.) Kai 356. It is bounden duty of the plaintiff to clearly establish that suit is bound to fail on a mere formal defect which could not be rectified by him under normal circumstances and the interest of justice requires that such permission should be granted. This indulgence should only be granted to award if it is adequately established that he was not at fault and did not commit a mistake. The said aspect of the matter which is based on sound legal footings and is in consonance with the provisions as contained in Order 23, Rule 1, C.P.C. Has been ignored. A careful analysis of the impugned order would reveal that the legal and factual position has not been appreciated in its true perspective and the order itself is contradictory. The second portion of paragraph 1 i.e. "instant suit is pending since June, 1996 and till now the plaintiff could proceed ahead to prove their claim, which is now realized by them that the case as set up by them would not be successful, therefore the plaintiff have filed instant application under Order 23, Rule 1, C.P.C., if accepted it would definitely reopen the case and the defendants again will suffer from expenses as well as hardship agony of this case. It would suffice to add here that defendant No .1 is the father of plaintiff and plaintiff to keep their contract on the property owned by their father (defendant No.1) as an admitted fact of the case" have no nexus with the conclusion as derived by the learned trial Court which runs as follows:-- "But for the sake of justice and by keeping in view the difficulties of plaintiffs, I do hereby accept the application under Order 23 Rule 1 C.P.C. With cost of Rs.10 000 for each plaintiff this cost is not a huge amount because the defendant will again suffer for a second round of litigation. The amount of cost be paid to defendant No 1. "
No mention whatsoever has been made about the "difficulties" as has been pointed out by the learned trial Court above in Order 23, Rule 1, C.P.C. And thus, the impugned order is not only devoid of merits, passed without diligent application of mind but is without jurisdiction. No formal defect could be specified in a categoric manner by the respondents - and, thus, there is no legal justification to accept the application submitted for withdrawal of the suit. There is no cavil to the proposition that permission to withdraw a suit depends upon "satisfaction" of the Court but it cannot be equated to that of "discretion",. The difference to between the two is that satisfaction can only be expressed once the conditions as laid down in Order 23, Rule 1 i.e. (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, are fulfilled in according permission to withdraw a suit but on the other hand discretion can be exercised either way and the only restriction which has been imposed in this realm is that it should be exercised judiciously. The grounds as mentioned in the impugned order are not cogent and convincing. It is really difficult to understand the mind of learned trial Court due to language which has been employed in the order itself. A similar proposition was discussed in case reported in PLD 1972 (Lah.) 290 wherein it was held that "the allegations in the petition for withdrawal do not show any formal defects nor is it clear that the formal defect, if any is of such nature that the suit must fail. Even the order of the 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". The impugned order passed by learned trial Court does not find any mention regarding the satisfaction of learned trial Court and reasons thereof. In so far as "non joinder" of parties is concerned that cannot be treated as a formal defect. PLD 1966 (W.P.) Kar. 356. The expression "formal defect" occurring in Rule 1(2)(a) Order XXIII of the Civil Procedure Code, 1908 has not been defined anywhere in the Code, but its plain meaning appears to be that the defect should be only in plaint or form of the suit. It appears to connote every kind of defect which does not affect the merits of the case. If the defect is a material and substantial defect and affects the merits of the case or goes to the root of the claim, it will not be a formal defect within the scope of clause (a), sub-rule (2), Rule 1 of Order XXIII, Civil Procedure Code, 1908. A revision under section 115 of the Civil Procedure Code, 1908, is competent against the order passed under Order XXIII, Rule 1 of the Code. If an order allowing the withdrawal of a suit is based on grounds which are not contemplated under Order XXIII, Rule 1, that would be an irregular exercise of jurisdiction vested in the Court. But if the ground was of a kind which was within the purview of Order XXIII, Rule 1 of the Code, then whether in the circumstances it was sufficient or not the revisional Court will not go into that matter. The words "other sufficient grounds" used in Rule 1(2)
(b), Order XXIII, of the Civil Procedure Code, 1908 mean grounds other than and different from "formal" defect and the matter is within the discretion of the Court. In order to induce the High Court to interfere in revision with matters mostly within the discretion of trial Court it is necessary that it should be perfectly satisfied that the order was not supported by any consideration of justice or by any provision of law. The power given by the Code to the Courts to give permission to withdraw is to be governed by certain considerations and if it appears that those considerations were not present in a certain case, it must be held that the order was passed without jurisdiction in a restricted manner. Municipal Committee, Chakwal v. Ch. Fateh Khan PLD 1959 Lah. 535 and Syed Sadaq Reza v. Nawab Asaf Kadar Syed AIR 1931 Cal. 268 r.1., Venkataramayya v. Veerasawami AIR 1925 Mad. 617, Pemmaraju Jogamma v. Pemmaraju Bhanumurthy 1927 M.W.N. 851, Sivagaminatha Pillai v. Venkitaswa mi Nicker AIR 1949 Mad. 295, Moti Lal Das v: Kali Das AIR 1931 Cal. 107, Jumma v.
Ram Sahai AIR 1934 All. 137, Ran 1,i v. Anjaniprasad AIR 1929 Nag. 72, Deosthan Math v. Ramdayal AIR 1943 r4ag. 307, Satyanarayan Hiralal v. Chotelal Onkar Prasad AIR 1926 Nag. 10, Satindra Mohan Tagore v. Bama Sundari Devi AIR 1926 Cal. 432, Ram Pardarath Misir v. Data Din Misir 1931 C. 892, Ejaz Rasul v. Mubarac AIR 1925 Oudh 291, Ramrao v. Babu Appanna AIR 1940 Bom. 121, Ataur Rahman v.
Mashkurun Nisa AIR 1926 La. 474, Muhammad Shafi v. Nawab PLD 1957 Lah. 971, Daw Dwe v. U. San Hla AIR 1938 Ran. 389, Municipal Committee, Gujra: v. Allah Dad 1371.C. 804 and Chiranji Lal v. Irphan Ali AIR 1935 All. 284 and PLD 1962 (W.P.) 476. No attention seems to have been paid to the pre- requisite as enumerated in Order 23, Rule 1, C.P.C. Before its provisions could be made applicable and, thus, the learned Civil Judge has acted in a reckless manner without appreciating the prevalent circumstances and well-entrenched legal position.
The upshot of the above discussion would be that the revision petition is accepted and the impugned order is set aside. There shall be, however, no order as to costs.