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Civil Petition for Special Leave to Appeal No. 193 of 1969, decided on 10th October 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 23rd April 1969, in Civil Revision No. 390 of 1968).
O. XXIII, r. 1‑Withdrawal of suit‑Objection by defendant in suit that (f) necessary party not impleaded and (ii) mere declaratory suit not maintainable‑Permit ting withdrawal with liberty to bring fresh suit in circumstances-Proper.
13 M I A 160 distinguished.
Mian Mohammad Shafi, Advocate Supreme Court instructed by Kh. Mushtaq Ahmad, Senior Attorney for Petitioner.
Nemo for Respondents.
Date of hearing : 10th October 1969.
‑The petitioner‑firm was the defendant No. 1 in a suit brought by the first respondent herein. It was a decla ratory suit. On the plaintiff's prayer, the suit was permitted to be withdrawn on the ground of formal defects with liberty to bring a fresh suit on the cause of action. Against the order of the trial Court permitting the withdrawal of the suit, a revisional application was made by the defendant in the High Court of West Pakistan, Lahore. This revisional application was found to be without any substance and was, accordingly, dismissed. The petitioner now seeks special leave to appeal against the High Court's order dismissing the revisional application.
Learned counsel for the petitioner submits that the trial Court's order permitting the withdrawal of the suit with liberty to bring a fresh suit is illegal inasmuch as there was no formal defect in the frame of the suit. The learned Judge of the High Court repelled this contention after pointing out a number of defects in the suit. The learned Judge was quite right in taking this view. In the suit, as already stated, the petitioner‑firm was the defendant No. 1. It appears from the written statement of that defendant that an objection was taken as to the defect of party and it was categorically stated that Mian Ilamuddin repre senting the said firm was a necessary party to the suit in his personal capacity. It was further alleged that a mere declaratory suit was not maintainable and that the prayer made in the suit was vague and indefinite. In fact, the defendant took the plea that in order to be maintainable the plaint of the suit ought to be amended. All these pleas in the written statement obviously refer to defects in the frame of the suit. Learned counsel retie on the decision reported in 13 M I A 160 in support of his contention that the order permitting withdrawal of the suit is illegal. The said decision, in view of the formal defects, as noticed above, is of no assistance.
The petition is dismissed.
Leave refused.
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