Saleem Ullah Vs Mst. Bibi Jana and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) C. R No. 40-A/2025

Saleem Ullah.

(Petitioner/s)

VS

Mst. Bibi Jana and others.

(Respondent/s)

Present: M/s Faisal Sajjad and Kamran Rehmani, Advocates for the petitioner.

Mr. Muhammad Ilyas Khan, Advocate for the respondents.

Dates of hearing: 13.08.2025

JUDGMENT

SADIQ ALI, J.- Through the instant civil revision petition, the petitioners/defendants have challenged the judgment & order dated 23.11.2024 passed by learned Additional District Judge-II, Battagram, whereby, the application filed by the respondents/ plaintiffs, for withdrawal of their suit with permission to bring fresh one, was accepted while disposing of the appeal filed against the judgment and decree of learned trial Court dated 30.11.2022.

2.Precisely, the facts of the case leading to the filing of the instant civil revision petition

are that the respondents/plaintiffs filed a suit for recovery of Rs. 139,338/- as rent of shops for the past three months and future rent of the shops at the same rate with 10% annual increase. Possession of the property bearing Khasra No. 2991/1710 through partition was also sought in prayer Bay of the plaint whereas in prayer Jeem, injunctions were solicited.

The suit was contested by the defendants including the petitioner, by filing their written statement.

Learned trial Court reduced pleadings of the parties into issues and thereafter the parties were asked to produce their respective evidence which they have accordingly led and after hearing the arguments, the learned trial Court dismissed the suit of the respondents vide judgment and decree dated 30.11.2022. The respondents/ plaintiffs being aggrieved of the aforesaid judgment and decree preferred an appeal and during pendency of the appeal an application for amendment in plaint or alternatively, withdrawal of the suit with the permission to file fresh one, was filed. The learned appellate Court, vide impugned judgment dated 23.11.2024, accepted application of the respondents to the extent of withdrawal of the suit with the

permission to file fresh one and while setting aside the judgment and decree of the learned trial Court, disposed of the appeal. Feeling aggrieved, the petitioner has approached this Court through instant petition.

3.Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

4.Perusal of record reveals that the respondents filed a suit seeking recovery of rent to the extent of their share as well as possession of their share of the inherited property through partition. The parties are admittedly the legal heirs of Alamgir Khan and the respondents sought recovery of their share from rental money as well as proper partition of their share by contending that though private partition between the parties has taken place, but the petitioners/defendants are not paying their share from the rental income, nor their specific possession is mentioned in the revenue record. The learned trial Court, after recording of evidence, dismissed suit of the respondents mainly on the ground that the predecessor of the parties owned other landed properties which have not been

included in the suit, as such the suit was hit by the principle of partial partition. Respondents, at the stage of appeal, filed application seeking two-fold relief i.e. permission for amending the plaint or in alternative, withdrawal of the suit with permission to file fresh one.

5.The learned appellate Court turned down request of the respondents for amendment in their plaint for the reasons that the application was not containing the requisite amendment. Moreover, the suit had been tried and decided by the learned trial Court after recording pro and contra evidence and allowing amendment at such belated stage would amount to filling up the lacunas. The learned appellate Court has rightly declined application of the respondents for amendment in the plaint.

6.So far as withdrawal of the suit with permission to file fresh one, is concerned. Order XXIII CPC provides that the plaintiff may seek withdrawal of his suit at any stage of the proceedings, with the permission to file fresh one, provided there are instances that the suit contains formal defect resulting into ultimate failure of the suit or there is any other sufficient ground calling

for allowing the plaintiff to file fresh suit, so that the lis between the parties could be adjudicated upon properly. The term ‘formal defect’ has not been defined in the CPC, therefore, honouable Supreme Court of Pakistan in the case of “Sardar Muhammad Kazim Ziauddin Durrani and others Vs. Sardar Muhammad Asim Fakharuddin Durrani and others” reported as 2001 SCMR 148, defined the term formal defect as under;

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 In the referred judgment, honourable apex Court was pleased to further hold that;

“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 (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 There is no denial of the fact that the suit of the respondents was containing formal defect because the entire joint property of their deceased predecessor was not included in the suit. Same was the contention of the respondents in their application, whereby they have sought permission to withdraw the suit with permission to file fresh one by including entire joint property as well as arraying the joint owners as party to the suit. The

learned appellate Court has thus rightly accepted application of the respondents.

7.It is also settled law that in case of inconsistency of the judgment and decree between the appellate Court and the trial Court, the High Court shall see that as findings of which of the Court are based on proper appraisal of evidence and as such in this case after analyzing and evaluating the evidence on file, the findings recorded by the appellate Court are correct and are the result of proper appreciation of evidence. In the case of “Mst. Azra Gulzar v/s Muhammad Farooq & another” reported as 2022 SCMR 1625 it was held by the Apex Court that “in a case inconsistency of judgment between the two Courts below the High Court was supposed to give its findings after reappraisal of the entire evidence. It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law”. In the case of “Madan Gopal and 4 others v. Maran Bepari and 3 others”

reported as PLD 1969 SC 617 it was held by the Apex Court that “if the finding of fact reached by the first appellate Court is at variance with that of the trial Court and as such the finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. This view is fortified by a long chain of judgments i.e. Alloo v.

Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v. Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v. Khuda Dad Khan (2004 SCMR 1046), Karim Bakhsh through L.Rs. and others v. Jindwadda Shah and others (2005 SCMR 1518), Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586), Muhammad Hassan v. Khawaja. Khalil ur Rehman (2007 SCMR 576) and Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. (2008 SCMR 1037).

8.In view of the above, the findings recorded by the learned appellate Court through the impugned judgment and decree are found by this

Court to be sound, reasonable and based on proper appreciation of the evidence available on record, which are maintained and upheld and consequently, the instant revision petition being bereft of any merit is hereby dismissed.

Announced

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