P L D 2026 Balochistan 57

 P L D 2026 Balochistan 57

Before Rozi Khan Barrech and Muhammad Najam ud Din Mengal,

JJ

GHULAM SARWAR ---Petitioner

Versus

NASIR and 6 others ---Respondents

Constitution Petition No. (t)32 of 2024, decided on 27th March, 2025.

(a) Civil Procedure Code (V of 1908)---

----O.XXIII, Rr.1 & 2---Withdrawal of suit with permission to file

afresh---Preconditions---Specifically pleading formal defects in the

application, requirement of---Scope---Application filed for conditional

withdrawal of suit was bereft of any content disclosing formal defect

in the plaint---Consequences---Briefly, the respondents instituted a

civil suit for declaration and permanent injunction in respect of suit

land---During pendency of the suit, the respondents/plaintiffs moved

an application under O.XXIII Rr.1 & 2, C.P.C. seeking withdrawal of

the suit with permission to file a fresh one, which was allowed by the

Trial Court---The petitioner challenged the said order through a civil

revision petition, which was dismissed by the revisional Court---

Aggrieved thereof, the petitioner invoked the constitutional

jurisdiction of the High Court for determination of the issue as to

whether the Courts below rightly exercised jurisdiction under O.XXIII

Rr.1 & 2, C.P.C., in permitting withdrawal of the suit with liberty to

file a fresh suit? ---Held: Respondents/plaintiffs did not disclose in

detail a formal defect or any other sufficient ground as required for

conditional withdrawal of the suit---Respondents/plaintiffs ought to

have mentioned justifiable grounds for conditional withdrawal of the

suit---Specific requirements necessary for withdrawal and filing a

fresh suit was lacking, because a formal defect was a defect which

could be of technical nature and could be cured through fresh suit---

Mere mentioning of general grounds were not enough to allow the

parties to withdraw the suit conditionally and to institute a fresh suit-

--Concurrent findings of the courts below were set aside and the

petition was allowed, in circumstances.

Sardar Muhammad Kazim Ziauddin Durrani and ohters v. Sardar

Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148 rel.

(b) Civil Procedure Code (V of 1908)---

----O.XXIII, Rr.1 & 2---Conditional withdrawal of suit with permission

to file a fresh suit---Scope---Preconditions---Existence of formal or

incurable defect---Requirement to specifically plead such defect The instituted suit can be withdrawn by the plaintiff and with the

permission of the Court, he can file a fresh suit, but subject to some

condition that the plaintiff has to show sufficient causes for

conditional withdrawal of the suit or any formal defect, which may

fail the suit---Now question arises that what are the conditions that

not only allow a plaintiff to withdraw the pending suit, but also to

file a fresh suit---Plaintiff can withdraw his suit or abandon any part

of his claim and such permission can be granted to the plaintiff to

withdraw his suit at any time and even during pendency of suit or

appeal or at revisional stage before the High Court, subject to the

condition that there are reasonable ground appearing on the face of

record that due to any formal defect the suit must fail or there are

sufficient grounds to believe that such defects cannot be removed

through amendment as provided under O.VI R.17, C.P.C.---However,

it is necessary for the plaintiff that whilst filing application under

the provisions of O.XXIII Rr. 1 & 2, C.P.C. for withdrawal of suit with

the permission to file fresh one, the plaintiff shall mention in detail

the incurable defects in the suit or any other sufficient ground to

believe that only a fresh suit is the remedy to repair the damage or

defect, otherwise the suit must fail.

(c) Civil Procedure Code (V of 1908)---

----O.XXIII, Rr.1 & 2---Conditional withdrawal of suit with permission

to file a fresh suit---Precondition---Plaintiff can only be allowed to

withdrawn the suit or abandon part of the claim if he succeeds in

establishing that the suit must fail by reason of some formal defect.

Mehrullah Gichki and Khaleef Ahmed for Petitioner.

Khaleel Ahmed Lehri for Respondents.

Date of hearing: 28th January, 2025.

JUDGMENT

MUHAMMAD NAJAM-UD-DIN MENGAL, J.---This judgement

disposes of Constitutional Petition No. (T)32 of 2024, filed by the

petitioner Ghulam Sarwar, against the Order dated 30 November 2023

passed by learned Qazi Tump (hereinafter referred as, "the trial

Court"), whereby the application under Order XXIII, Rules 1 and 2

C.P.C. for conditional withdrawal of suit with permission to file a fresh

one, was accepted and against the Order dated 31st January 2024

passed by learned Majlis-e-Shoora Turbat (hereinafter referred as "the

revisional Court", whereby the Civil Revision Petition filed by the

petitioner was dismissed by maintaining the Order of trial Court.

2. Facts of the case are that the respondents (plaintiffs) filed a suit

for declaration, permanent injunction and restraining from illegal

interference over suit land situated at Dap Daur Kallag Tagran before the learned trial Court, which suit was contested by the petitioner

(defendant) by filing his written statement, wherein he repudiated the

claim of the respondents (plaintiffs).

3. During pendency of suit, the respondents (defendants) filed an

application within the meaning of Order XXIII, Rules 1 and 2 C.P.C. for

withdrawal of the suit with permission to file a fresh one, hence the

said application was contested through rejoinder, however, after

hearing arguments, the learned trial Court accepted/allowed the said

application subject to all just exception and with payment of cost of

Rs.3000/-, vide impugned Order dated 30th November 2023. Thus, the

petitioner filed a Civil Revision Petition before the learned revisional

Court, but the same was dismissed, vide Order dated 31st January

2024. Whereafter, the petitioner (defendant) has invoked the writ

jurisdiction of this Court.

4. Learned counsel for petitioner (defendant) argued that the

concurrent findings of the Courts below are perverse and contrary to

law and facts; that both the Court below while delivering the

impugned Orders have failed to interpret the relevant provisions of

law, thus arrived at a conclusion, which is against the spirit of Order

XXIII, Rules 1 and 2 C.P.C.; that the minor defects can be cured by

means of amendments as provided under Order VI, Rule 17, C.P.C., thus

there was no need to withdraw the suit, that the ingredients of Order

XXIII, Rules 1 and 2, C.P.C. are lacking, as the respondents (defendants)

have failed to point out any formal defect or sufficient cause to

establish a case for conditional withdrawal of suit, but despite the

same the withdrawal application was accepted, thus both the

impugned Orders of Courts below require interference of this Court.

5. Learned counsel for respondents (plaintiffs) strongly opposed the

contentions of the learned counsel for petitioner (defendant) and

while supporting the concurrent findings of the Courts below stated

that both the Courts below have delivered the impugned Orders in

accordance with law, that the provisions of Order XXIII Rules 1 and 2,

C.P.C. envisages right to a litigant to withdraw the pending suit, if

necessary under the circumstances of the case, thus the learned trial

Court rightly exercised its powers under Order XXIII, Rules 1 and 2,

C.P.C. by allowing the withdrawal of suit with the permission to file a

fresh once and during arguments before the Revisional Court the

learned Counsel for petitioner has failed to point out any illegality or

irregularity in the impugned Order of the trial Court, thus rightly the

revision petition was dismissed; that well-reasoned Orders have been

delivered by both the Courts below and the learned counsel for

petitioner has failed to point out any material illegality or irregularity

or jurisdictional defect in the impugned Orders, that the case is at initial stage and no prejudice would be caused to the petitioner, if the

suit is withdrawn and fresh suit is filed, thus prayed for dismissal of

petition.

6. Heard the learned Counsel for parties and with their valuable

assistance minutely perused the available record. The moot question

involved in the matter pertains to interpretation of Order XXIII, Rules

1 and 2, C.P.C., thus for facilitation the same is reproduced herein

below:

"1. Withdrawal of suit or abandonment of part of claim.-(1) At any

time after the institution of a suit the plaintiff may as against all

or any of the defendants withdraw his suit or abandon part of

his claim.

(2) Where the Court is satisfied after recording reasons-

(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 authorize the Court to

permit one of several plaintiffs to withdraw without the consent

of the others."

7. The above cited provision of law clearly manifests that the

instituted suit can be withdraw by the plaintiff and with the

permission of the Court, he can file a fresh suit, but subject to some

condition that the plaintiff has to show sufficient causes for

conditional withdrawal of the suit or any formal defect, which may fail

the suit. Now question arises that what are the conditions that not only

allow a plaintiff to withdraw the pending suit, but also to file a fresh

suit. Sub-Rule (a) of Rule (1) of ibid Rules permits the plaintiff to

withdraw his suit or abandon any part of his claim and such

permission has been granted to the plaintiff to withdraw his suit at

any time and even during pendency of suit or appeal or at revisional

stage before the High Court, subject to the condition that there are reasonable ground appearing on the face of record that due to any

formal defect the suit must fail or there are sufficient grounds to

believe that such defects cannot be removed through amendment as

provided under Order VI, Rule 17, C.P.C. However, it is necessary for

the plaintiff that whilst filing application under the provisions of

Order XXIII, Rules 1 and 2, C.P.C. for withdrawal of suit with the

permission to file fresh one, the plaintiff shall mention in detail the

un-curable defects in the suit or any other sufficient ground to believe

that only a fresh suit is the remedy to repair the damage or defect,

otherwise the suit must fail. It has been established that there is no

pressure or force upon the plaintiffs to proceed with the case at all

conditions rather during pendency of proceedings of suit before the

trial Court or at appellate stage when it appears that the suit must fail

due to any formal defect, the plaintiff is at liberty to abandon any part

of his claim or to withdraw the suit partly or entirely against all or any

of the defendants.

8. As discussed in the preceding para that the suit can be

withdrawn, when there appears any formal defect that fails the suit,

hence we have perused the application under Order XXIII, Rules 1 and

2, C.P.C. filed by the respondents (plaintiffs) before the trial Court,

wherein the plaintiffs have simply mentioned that, "...the suit has been

instituted without adding over the foremost material, facts, necessary

parties, and these defect are not removable through amendments

except filing a fresh". The plaintiffs have not disclosed in detail a

formal defect or any other sufficient ground as required under the

provisions of Order XXIII, Rules 1 and 2, C.P.C. for conditional

withdrawal of the suit. The reasons so mentioned for conditional

withdrawal of the suit do not amount to a formal defect or any other

sufficient ground for conditional withdrawal of the suit. The plaintiffs

ought to have mentioned justifiable grounds for conditional

withdrawal of the suit. The specific requirements necessary for

withdrawal and filing a fresh suit is lacking, because the formal defect

is a defect which may be of technical in nature and can be cured

through fresh suit. The main object of Sub-rule (2) of Order XXIII, C.P.C.

is to prevent the defeating of ends of justice on account of

technicalities. The plaintiffs must have mentioned in his application

the defects that the suit property has not been properly valued or the

description whereof were wrongly mentioned or necessary cause of

action has not been mentioned or the mention of necessary and

material documents are not mentioned in the plaint, upon which the

entire case revolves or that the said documents were not properly

stamped etc. Such are few examples of formal defects, on the basis of

same a withdrawal of suit can be permitted with permission to file a

fresh one, but the application so submitted by the plaintiffs are silent with regard to any of the defect that must fail the suit. Mere

mentioning of general grounds are not enough to allow the parties to

withdraw the suit conditionally and to institute a fresh suit rather the

plaintiffs ought to have mentioned sufficient cause for doing such act.

The Hon'ble Supreme Court in the case of Sardar Muhammad Kazim

Ziauddin Durrani and ohters v. Sardar Muhammad Asim Fakhuruddin

Durrani and others, 2001 SCMR 148, wherein the formal defect has

been discussed in the following manner:

"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 thing is 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 unearthed 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 (WP) 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. Having gone through the relevant provision of law and the

consistent view of the Hon'ble Supreme Court, we have no hesitation

to hold that the plaintiffs can only be allowed to withdraw their suit or

abandon part of their claim if they succeed to establish that suit must

fail by reason of some formal defect, but admittedly the plaintiffs have

failed to disclose some formal defect leading to failure of suit. The

Courts below have failed to consider that conditional withdrawal of

the suit cannot be allowed in a mechanical and haphazard manner

and the Court is duty bound to examine the contents of the application

seeking such permission. From the perusal of the application moved

by the plaintiffs it is crystal clear that the same is bereft of any content

disclosing formal defect in the plaint.

10. The concurrent findings of Courts below by allowing the

application for conditional withdrawal of the suit by the trial Court

and maintaining the same by the revisional Court are against the

object of Order XXIII, C.P.C., because such permission can only be

granted due to some formal defect or sufficient causes shown by the

plaintiff, but in the case in hand the saplication filed in such behalf is

altogether silent, thus the Orders of both the Courts below cannot

sustain.

For the above reasons, this petition is allowed and the impugned

Orders dated 30th November 2023 passed by learned Qazi Tump and

dated 31st January, 2024, passed by learned Majlis-e-Shoora Turbat are

set-aside and in consequence whereof the application filed under

Order XXIII, Rules 1 and 2, C.P.C. is hereby rejected and the suit is

restored in its previous position. The trial Court to proceed the case in

accordance with law.

UN/106/Bal. Petition allowed.