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Revision Application No. 617 of 1962, decided on 22nd February 1965.

O. XXIII, r. 1 --Withdrawal of suit‑Order disposing of application must be self contained‑Court must show that it applied its mind to provision of O. X XIII, r. 1.

O. XXIII, r. 1 ---Withdrawal of suit‑Expression "formal defect"‑Must be given wide and liberal meaning and be deemed to connote every defect which does not affect merits of case‑Defect must be of such nature as to entail dismissal of suit‑Expression does not include non joinder of parties for which a suit cannot be dismissed.

Haridas Sadhu Khan and another v. Girdhari Sadhu Khan and another A I R 1934 Cal. 59; Mukhtanath Tewari and another v. Vidayashankar Dube and another A I R 1943 All. 67; The Asian Assurance Co. Ltd. v. Madholal Sudhu and others A I R 1950 Bom. 378 and Tarachand Bapuchand v. Gaibihaji Ahund Bagwan A I R 1956 Bom. 632 fol.

Munawwar Abbas for Petitioner.

Respondent absent.

Date of hearing: 22nd February 1965.

This is an application in Revision by the defendants in a suit for declaration and injunction against the order passed by the learned Civil Judge First Class, Karachi on 12‑10‑1962 in an application under Order XXIII, r. 1, C. P. C., permitting the plaintiff (opponent) to withdraw the suit with permission to file a fresh suit, if necessary.

2. As I am of the view that an order under Order XXIII, rule 1, C. P. C., should not be passed without due consideration to the said provision, I propose to deal with the matter in some detail.

3. The suit giving rise to the application under Order XXIII, rule 1, C. P. C. was filed by one Muhammad Sultan against Messrs Nazir & Co. for declaration and injunction. The plaintiff claimed to be the agent of Continental Cotton Gin Co. for selling cotton ginning machinery and its equipments in Pakistan. It is contended that the defendants were interfering with his right to sell the goods manufactured by Continental Cotton Gin & Co. The suit was filed on 4th April 1962. The application under Order XXIIT, rule 1, C. P. C., was made on 12th October 1962.

3. The application under Order XXIII, rule 1, C. P. C., reads as under:‑

"It is submitted on behalf of the plaintiff that certain technical difficulties have arisen in the case due to the fact that the licence in the case was issued by the Chief Controller, Exports and Imports and there are other considerations including the fact that the matter is also being considered by the aforesaid department. It is submitted that the plaintiff may kindly be allowed to withdraw the suit with permission to file another suit, if necessary."

It appears that, on the objection being taken by the learned Advocate for the defendants, that the application reproduced above did not disclose as to what was the formal defect, the learned Advocate for the plaintiff added the following to the application under Order XXIII, r. 3:

"The technical defect is that it may be necessary to implicate any other party whose presence may be necessary for a just decision of the matter."

4. The learned Advocate for the applicant raised two‑fold contentions before me. He contended, in the first place, that the application, as drafted, was too vague and did not disclose any formal defect within the meaning of Order XXIII, rule 1, C. P. C. In the second place, he contended that even if there was a non joinder of parties this did not amount to formal defect within the meaning of Order XXIII, rule 1, C. P. C.

5. The learned Civil Judge passed the following order:‑--

"That the plaintiff be permitted to withdraw the suit with permission to file another suit."

It would be necessary to observe that the order disposing of an application under Order XXIII, rule I must be a self‑contained one. It must contain the facts in sufficient detail to enable the Court to know the case of the parties and the defect which has led to the application for withdrawal of the suit and the reasons granting the application. The Court must show, while disposing of the application, that it has applied its mind to the provisions contained under Order XXIII, rule 1, C. P. C. There is nothing in the impugned order of the learned Civil Judge to disclose that he considered the provision of Order XXIII, rule 1, C. P. C. and came to the conclusion that there was a formal defect.

6. There is force in the contention that the application is a vague one which did not disclose any formal defect and therefore, it should have been dismissed on that ground.

7. There is substance in the contention that the mere non joinder of parties would not be covered ‑ by the expression "formal defect" within the meaning of Order XXIII, rule 1, C. P. C. It is true the expression "formal defect" must be given. a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merit of the case. "Formal defect" does not, however, include non‑joinder of parties. In this connection Mr. Munawar Abbas, the learned Advocate for the applicant, relied on a number of authorities, namely:‑

Haridas Sadhu Khan and another v. Girdhari Sadhu Khan and another A I R 1934 Cal. 59;

Mukhtanath Tewari and another v. Vidayashankar Dube and another A I R 1943 All. 67;

The Asian Assurance Co. Ltd. v. Madholal Sadhu and others A I R 1950 Bom. 378;

Tarachand Bapuchand v. Gaibinaji Ahund Bagwan A I R 1956 Bom. 632.

in support of his contention that a defect of non joinder of some of the parties to the suit is not a formal defect contemplated by rule I of Order XXIII, C. P. C. I agree with the principle laid down in these cases that non joinder of parties is not a formal defect. This defect can be remedied by the addition of the necessary party under Order I, rule 10, C. P. C. Moreover, under Order XXIII, rule 1, C. P. C. the formal defect must be of such a nature that the suit would be dismissed on that ground. The mere non joinder of the parties cannot result in dismissal of the suit. In this connection reference may be made to Order I, rule 9, C. P. C. It lays down that no suit shall be defeated by reason of mis‑joinder or non‑joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

8. The opposite‑party has been served but has not appeared before me. I would, for the reasons given above, set aside the order of the learned Civil Judge dated the 12‑10‑1962 and remand the case to the Court below to dispose of the suit according to lair.

S.Q. Petition allowed.

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