๐ ๐๐ฅ๐๐ข๐ง๐ญ๐ข๐๐ ๐๐๐ง ๐๐ข๐ญ๐ก๐๐ซ๐๐ฐ ๐ก๐ข๐ฌ ๐๐ฎ๐ข๐ญ ๐ญ๐จ ๐ ๐ข๐ฅ๐ ๐ ๐ ๐ซ๐๐ฌ๐ก ๐๐ง๐ ๐จ๐ง๐ฅ๐ฒ ๐ข๐ ๐๐ ๐ฌ๐๐ญ๐ข๐ฌ๐๐ข๐๐ฌ ๐ญ๐ก๐ ๐๐จ๐ฎ๐ซ๐ญ ๐ญ๐ก๐๐ญ ๐ญ๐ก๐๐ซ๐ ๐ข๐ฌ ๐ ๐ ๐จ๐ซ๐ฆ๐๐ฅ ๐๐๐๐๐๐ญ ๐ข๐ง ๐ญ๐ก๐ ๐๐ฎ๐ข๐ญ ๐ฐ๐ก๐ข๐๐ก ๐ข๐ฌ ๐จ๐ ๐ ๐๐๐ญ๐ฎ๐ซ๐ ๐ญ๐ก๐๐ญ ๐ฆ๐ฎ๐ฌ๐ญ ๐๐๐ฎ๐ฌ๐ ๐ญ๐ก๐ ๐๐ฎ๐ข๐ญ ๐ญ๐จ ๐ ๐๐ข๐ฅ: LHC
A plaintiff who institutes a suit in a civil court has an absolute right to withdraw the same, but the question is whether the law allows him to file the same suit a fresh against the same defendants on the same subject matter. This was the moot point before the Lahore High Court in a recent case wherein the plaintiff had moved an application for withdrawal of his suit with permission to file a fresh, which was contested by the defendant that a civil court can only allow a plaintiff to withdraw the suit with permission to file a fresh in the future only if he discloses a formal defect in the suit, not otherwise. The civil court upheld the defendant’s objections and dismissed the application. This order of the civil court was set aside by the revisional court and the every decision of the revisional court was under challenge before the L.H.C.
๐๐๐๐ฌ๐จ๐ง๐ข๐ง๐ ๐จ๐ ๐ญ๐ก๐ ๐๐ข๐ ๐ก ๐๐จ๐ฎ๐ซ๐ญ:
The High Court held that Order 23 Rules 1, 2 and 3 are relevant to decide the fate of the lis in hand. ย Rule 1 grants a plaintiff an absolute permission to withdraw his suit, but if he wants to file the suit a fresh in the future here Rules 2 and 3 come into play. Rule 2 stipulates that if the suit is to be filed a fresh in the future, permission of the court must be sought and a formal defect in the suit must be shown which is apparent not latent. Otherwise, Rule 3 entails consequences for withdrawal of a suit without permission of the court and precludes to file the same suit a fresh and makes the plaintiff liable to pay the cost as well.
So withdrawal of the suit is an absolute right of a plaintiff but to withdraw it to file a fresh is not, as in the later case the plaintiff has to seek permission of the court and that permission can only be granted if the plaintiff succeeds to show a formal defect in the suit.
๐๐ก๐ ๐๐จ๐ง๐๐๐ฉ๐ญ ๐จ๐ ๐ ๐จ๐ซ๐ฆ๐๐ฅ ๐๐๐๐๐๐ญ ๐ข๐ง ๐ ๐๐ฎ๐ข๐ญ:
The Court then turned to the concept of formal defect in a suit and held that it means lack of legal requisite, insufficiency, deficiency or such a defect in a suit which may cause the suit to fail if not cured. The purpose of Rule 2 is to avoid the defeat of justice on the basis of technicalities and allow the parties to cure the defect(s) in the suits. The Court also elaborated that some of the instances of formal defect may be as Mis-joinder of parties or cause of action, failure to disclose cause of action, wrong valuation of the suit and similar other defects.
The existence of a formal defect in a suit may also be determined on the basis of whether the Orders and Rules of the C.P.C, which regulate the institution and pleadings of suits and applications, have been complied with. If so, the suit cannot be withdrawn to file a fresh in future.
๐๐๐๐ข๐ฌ๐ข๐จ๐ง ๐จ๐ ๐ญ๐ก๐ ๐๐ข๐ ๐ก ๐๐จ๐ฎ๐ซ๐ญ:
The Court noted in the case in hand that the application of plaintiff did not entail any cogent reason nor did it disclose any formal defect in the suit on the basis of which the same can be allowed to withdraw to file a fresh in the future. Thus, the High Court upheld the decision of the civil court and set aside the jdugment of the Additional District judge being devoid of law and reasoning.
๐๐ก๐ ๐๐ฎ๐ญ๐ก๐จ๐ซ ๐ฃ๐ฎ๐๐ ๐: ๐๐จ๐ง๐จ๐ซ๐๐๐ฅ๐ ๐๐ฎ๐ฌ๐ญ๐ข๐๐ ๐๐ข๐ซ๐ณ๐ ๐๐ข๐ช๐๐ฌ ๐๐๐ฎ๐.
๐๐๐๐๐ซ๐๐ง๐๐: ๐๐๐๐ ๐๐๐ ๐๐๐๐
2023 C L C 2042
