' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioners seek leave to appeal against the judgment of the High Court of Balochistan dated 1-3-1999 whereby civil revision petitions filed by the respondents were allowed as a result whereof order dated 31st October, 1997 passed by Civil Judge-I, Quetta allowing application under Order XXIII, Rule 1, C.P.C. Has been set aside.
' Petitioners (plaintiffs) are the sons of Sardar Muhammad Asim Fakhruddin Durrani (respondent No,1). Latter being the owner of the property detailed in the plaint (hereinafter referred to as the "suit property") situated in Quetta transferred some of the units in favour of respondents No,2 to 5 by executing sale-deeds and also entered into sale agreements with the remaining respondents.
Petitioners sought cancellation of sale-deeds and sale agreements by instituting Civil Suit No,69 of 1996 on 25th June, 1996 in the Court of Civil Judge-I, Quetta chiefly on the averments that the suit property was originally owned by their grandfather Sardar Muhammad Essa Khan and after his death in the year 1979 it devolved upon the respondent No, 1 . It was mentioned in the plaint that affairs of the property were being managed by their mother Mrs. Hussain Taj during the lifetime of their grand-father because she was being trusted by him and in this manner she remained beneficiary of the property. However, after the death of their mother the petitioners are looking after the affairs of the ancestral property because respondent No,1 was not keeping sound mental health and on consultation with Doctors they were informed that he had developed senility. During this process petitioners learnt that respondent No,1 had sold 5 shops out of the suit property to respondents Nos.2 to 5 at a very low rate whereas she has also executed sale agreements with the remaining respondents to dispose of all the suit properties. Thus, in the following terms decree was prayed for:-- "(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 transactions carried out by defendant No,1 with defendants Nos.2 to 5 are illegal, void, without lawful authority and as the defendant No,1 is a person of unsound mind;
(iii) that defendant No,1 be permanently restrained from in any way disposing of alienating or disposing ancestral property referred to in para. 1;
(iv) the defendants Nos .6 and 7 be directed not to carry out sale transaction in respect of the ancestral properties referred to in Para. I and that the sale transactions in favour of defendants Nos.2 to 5 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 also be granted alongwith cost of the suit."
3. The suit was contested by respondents denying thereby legal entitlement of petitioners to file suit both for want of cause of action and locus standi because respondent No,1 being exclusive owner of the suit property possesses lawful rights to enjoy its benefits in the manner suits to him.
4. Learned trial Court proceeded with the suit accordingly but in the meanwhile petitioners submitted an application under Order VI, Rule 17, C.P.C. Seeking amendment in the plaint to incorporate the fact that now they have collected information from one of their paternal-aunt resident of Karachi that respondent No,1 has transferred the suit property by way of gift in favour of their mother Mst. Hussan Taj, therefore, permission be accorded to claim relief on the basis of gift deed dated 8-1-1991 Learned trial Court on examining the objections so filed by respondents declined to accord permission to amend the plaint and dismissed the application vide order dated 25-8-1997. Subsequent thereto on 24-9-1997 petitioners filed an application under Order XXIII, Rule 1, C.P.C. Seeking withdrawal of suit with permission to file fresh suit because according to their viewpoint suit suffers from following formal defects:--
(i) For misjoinder of parties;
(ii) For proper valuation of the subject-matter of the suit property for the purpose of jurisdiction and payment of court-fee;
(iii) For claiming decree on the basis of gift deed dated 8-1-1991 executed by their father in favour of Mst. Hussain Taj (late) mother of the petitioners;
(iv) For non-claiming relief of possession of the suit property.
5. Though the application was squarely contested by the respondents but learned Civil Judge allowed the same on 13-10-1997. As a consequence whereof the respondents filed Revision Petitions Nos.306 and 326 of 1997 before the High Court of Balochistan which have been allowed by impugned order. Therefore, instant C.P.L.As. Nos. 207-Q and 208-Q of 1999 have been filed.
6. Mr. H. Shakil Ahmad learned Advocate Supreme Court contended that the defects pointed out in the application dated 31-10-1997 filed under Order XXIII, Rule 1, C.P.C. Were formal in nature and without removing them, there was every likelihood of failure of the suit, therefore, the Civil Judge in its discretion granted permission to withdraw the suit and file a fresh suit in respect of the same subject-matter. Learned Judge in Chambers of the High Court in absence of any jurisdictional defect or irregularity or illegality may have not set aside the order of Civil Judge. Reliance was placed on PLD 1965 SC 634 and 1970 SCMR 233.
7. M/s. Basharatullah and K.N. Kohli, learned Advocates for respondents argued that the defects pointed out by the petitioners in the suits are not covered by the expression "formal defects" under Order XXIII, Rule 1, C.P.C. As such their request for withdrawal of suit being unwarranted and contrary to law has rightly been declined by the High Court. It was also explained by them that petitioners in fact intended to set up altogether new case in view of the so-called gift deed dated 8-1-1991 whereas law prohibits substitution of the plea in the manner adopted by them. Mr. Basharatulah learned Senior Advocate Supreme Court further added that (to incorporate the plea basing the claim on gift) petitioners filed an application under Order VI, Rule 17, C.P.C. Seeking amendment in the plaint that their mother being donee of the suit property has acquired ownership over it but the application was declined vide order dated 25-8-1997. The petitioners did not challenge this order before the next competent Authority and by taking a somersault decided to withdraw the suit on the pretext that it suffers from formal defects, thus, the learned High Court had rightly passed the impugned order setting aside the order of Civil Judge dated 31-10-1997. To substantiate their viewpoint reference was made by them to the judgments reported in PLD 1957 Lahore 971, PLD 1961 Dacca 844, PLD 1962 Lahore 476, 1972 SCMR 203 and 1986 CLC 1316.
8. We have carefully noted the contents of application to know whether the suit was suffering from "formal defects" or otherwise, and their removal has become essential to save it from failure. It is noteworthy that under Order XXIII, rule 1, sub-rule (2) law has foreseen two situations, i.e, incorporated in clauses (a) and (b) warranting withdrawal of suit. In the instant case petitioners have prayed for relief in view of clause (a) which deals with the failure of the suit due to "formal defect". Under C.P.C. Expression "formal defect" has not been defined anywhere. As such, we have to refer to its meaning as per dictionary which reads as under;-- "The want or absence of some legal requisite; deficiency; imperfection; insufficiency. The want or absence of something necessary for completeness or perfection; a lack or absence of something essential to completeness; a deficiency in something essential to the, proper use for the purpose for which a thingis to be used (Black's Law Dictionary, Vth Edition, page 376)."
' From perusal of above meaning of the word "defect" conveniently it can be visualized with reference to a suit framed under the C.P.C. That if it is not arranged in accordance with Order VI, Rules 1 to 4, 14, 15 or Order VII, Rules 1 to 7, C.P.C. Then it would be deemed that suit suffers from defect. However, such defect itself shall not be sufficient to grant permission to withdraw the suit unless it is not shown that for any one of formal defects the suit is likely to fail, which mean that the nature of the defect must be apparent but not latent because as far as former category of defect is concerned, it is visible and is not liable to be explored after an inquiry, because if there is procedural departures in the form or arrangement of the suit obviously it would be apparent and if there is substantial defect in the suit, it would fall under the latter category which can only be unerathed after recording of evidence. Therefore, permission can only be granted to remove a defect, which is apparent or formal and its presence in the suit may fail it, but if it is latent and touches merits of the case, then permission to withdraw the suit on this score cannot be granted.
Reference in forming this opinion is placed on the cases of Muhammad Din v. Atta Muhammad and others (PLD 1957 (W.P.) Lahore 971), Ahmad Bakhsh v. Allah Bakhsh and another (PLD 1962 (W.P.)
Lahore 476), Aqil Hussain v. Muhammad Sadiq and 7 others (1986 CLC 1316) and Ahmad Din and 3 others v. Town Committee, Depalpur (1972 SCMR 203).
9. As far as instant case is concerned if it is looked keeping in view the above discussion, it would abundantly be clear that so far the ground mentioned in the application under Order XXIII, Rule 1, sub-Rule (2), C.P.C. That the suit property has been gifted by respondent No,1 to their mother Mst.
Hussan Taj (late) etc. Is concerned it cannot be treated to be a apparent lackeness in formation/arranging the suit in order to invoke the provisions of clause (a), sub-rule (2) of Rule 1 of Order XXIII, C.P.C. As this effect is substantial or latent in its nature and touches the merits of the case, therefore, for such reason permission to withdraw the suit was unwarranted.
10. Now adverting towards ground that suit suffers from formal defects for want of non-joinder of necessary parties it is to be observed that in view of Order I, Rule 9, C.P.C. Non-joinder of parties has never been considered fatal for a suit. Even otherwise this defect can be removed by adhering to the provisions of Order 1, Rule 10 read with section 151, C.P.C.
11. As far as improper valuation of the subject-matter of the suit is concerned it also does not tantamount to constitute formal defect because the valuation of the subject-matter of the suit both for the purposes of jurisdiction of the Court and payment of court-fee can be corrected by the Court after recording evidence and if it comes to the conclusion that deficient court-fee has been paid on the plaint then it can call upon the plaintffs/petitoners to make the deficiency good in exercise of its jurisdiction conferred upon it by section 149, C.P.C. Because the question of payment of court-fee is a matter between the subject and State as it has nothing to do with opponents as held in the case of Siddique Khan v. Abdul Shakoor Khan and another (PLD 1984 SC 289). Similarly if the Court comes to conclusion that the valuation of the subject-matter is more than its specuniary jurisdiction then either it can proceed with the matter considering that if it has jurisdiction because such determination has taken place during the pendency of trial of the suit or if the Court forms an opinion otherwise then it can transfer the case through administrative Judge to Court of competent jurisdiction. However, for such defect which again is a latent in its nature suit cannot fail.
12. As far as the defect of non-claiming the possession is concerned in this behalf it is to be noted that initially this relief was not claimed and if now the petitioners consider themselves to be entitled for the possession of property they, have to amend the suit with permission of the Court to add this relief. Thus, the question of claiming relief of possession being substantial in nature which also tocuches merits of the case can hardly be considered a formal defect in the plaint to make out a ground for the withdrawal of the suit.
' Thus, in view of above discussion, we are of the opinion that no case is made out for grant of leave, therefore, the petition is dismissed.