Find a Lawyer

Civil Revision No. 407 of 1960, decided on 8th March 1965.

O. XXIII, r. 1 and S. I51 Withdrawal of suit‑Trial Court must apply its mind to facts of case and consider particular ground sufficient for withdrawal of suit‑Clerical mistake in plaint neither specifically mentioned by plaintiff in his statement nor considered by trial Court‑Order of withdrawal set aside‑Case remanded for hearing according to law.

The trial Court has the authority to record any ground sufficient for allowing the withdrawal of a suit, but it is to be established that it had, in fact, applied its mind to the facts of the case and had considered a particular ground sufficient for allowing the withdrawal of the suit. Where the only ground for the withdrawal of the suit was a clerical mistake which was neither specifically mentioned in the plaintiff's statement, nor was it considered by the trial Court, the order of withdrawal was set aside and the case remanded under section 151, Civil Procedure Code, 1908, for hearing according to law.

S. Haider Shah for Petitioner.

S. Usman Ali Shah for Malik Muhammad Jafar for Respondents.

Date of hearing : 8th March 1965.

Briefly, the facts giving rise to this revision petition are that Lal Khan, son and Mst. Nek Bakht, daughter of Karam Khan, residents of Village Thatta, Tehsil Pindigheb, District Campbellpur, brought a suit for a declaration, alleging that land measuring 44 kanals, comprised in Khasra No. 1577, situate in the area of Village Thatta, belonged to them and defendants Nos. 3 to 13, but it was actually in hissadari possession of the plaintiffs defendant No. 11 and defendants Nos. 1 and 2 had no title to it. The suit was instituted in the Court of Additional Civil Judge, Campbellpur, on the 1st of December 1959. Mr. Muhammad Jaffar Khan, counsel for the plaintiffs, by his statement dated the 26th of October 1960, requested the Court for permission to withdraw the suit and to bring a fresh suit on account of some clerical mistake in the plaint, which could not be cured. The request of the plaintiffs was objected to by the defendants. The trial Judge, however, by his order of the same date, allowed the plaintiffs to withdraw the suit and permitted them to bring a fresh suit on payment of Rs. 20 as costs.

2. The defendants have come up on revision to this Court.

3. Learned counsel for the defendant‑petitioners urged that the failure on the part of the lower Court to give reasons for its order amounted to material irregularity. He also referred to Order XXIII, rule 1, Civil Procedure Code, which is as under :‑

1. (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

(a) that a suit must fail by reason of some formal defect,

or

(b) . . . . . . . . . . . .

4. There is some force in the contention of the learned counsel for the defendant‑petitioners, because the trial Judge had failed to give reasons for the withdrawal of the suit in his order. A reference to the file would show that the plaintiff‑respondents had neither given an application for the withdrawal of the suit nor any reasons were advanced for its withdrawal on account of some formal defect. There is only the statement of the counsel for the plaintiff‑respondents alleging that on account of some clerical mistake, the suit was bound to fail. Before allowing withdrawal of the suit, it was the duty of the Court to consider, as to whether there was any formal defect in the plaint. It appears that the Court, while allowing the withdrawal of the suit, did not apply its mind to the facts of the case and seems to have given permission mechanically without finding as to whether any formal defect existed in the plaint or not. Counsel for the plaintiff respondents by his statements dated the 26th of October 1960, did not refer specifically to any formal defect or clerical mistake in the plaint. It is true that the trial Court has the authority to record, any ground sufficient for allowing the withdrawal of a suit, but it is to tae established that it had, in fact, applied its mind to the facts of the case and had considered a particular ground sufficient for allowing the withdrawal of the suit. The only ground for the withdrawal of the suit, as alleged by the plaintiff‑respondents counsel, was a clerical mistake, was neither specifically mentioned in his statement and nor it was considered by the trial Court. In these circumstances. I accept this revision petition, set aside the order of the trial Judge and remand the case under section 151, C. P. Code directing him to hear it according to law. Parties are directed to appear in the trial Court on the 9th of April 1965. Costs to follow the event.

S. A. H./S. Q. Petition accepted,

Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.