a
I.
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE YAHYA AFRIDI
Civil Petition No.3772 of 2019
Against judgment dated 29.08.2019 of Lahore
High Court, Multan Bench, Multan, passed in
Civil Revision No. 1202-D of 2003.
Muhammad Yousaf & others 
Petitioner(s)
VERSUS
Nazeer Ahmed Khan (deed) through LRs, etc 
Respondent(s)
For the Petitioner(s): 
Syed Muhammad Ali Gillani, ASC
Ch. Akhtar Ali, AOR
For the Respondent(s) 
Ch. Arshad Au, ASC/AOR
Date of hearing: 12.08.202 1
ORDER
IJAZ UL AHSAN, J-. The petitioners seek leave
to appeal against a judgment of the Lahore High Court,
Multan Bench, Multan, dated 29.08.2019. Through the
impugned judgment, a Revision Petition (C.R.No. 1202-D
of 2003) filed by the Respondents was disposed of by
directing that the original suit instituted by the
Respondents would stand dismissed as withdrawn with
liberty to file a fresh one which remedy on being availed
will be dealt with in accordance with law.
2. 
Briefly stated the facts necessary for disposal
of this its are that Farzand Ali, father of Respondent No.1
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(Nazir Ahmed Khan) migrated to Pakistan after partition
of the subcontinent. He filed a claim for his abandoned
land in India. After verification of his claim bearing
No.4380, an agricultural land against 487 units was
allotted to him in Chak No. 134/9-L and against the
remaining 187 units, agricultural land was allotted to
him in Chak No.25/9-L, Tehsil & District Sahiwal. The
said Farzand Ali appointed Muhammad Ameer as his
general attorney. On the basis of such general power of
attorney, Muhammad Ameer transferred the land
situated in Chak No. 125/9-L, in favour of Mst. Parveen
Noon (Respondent No.2) vide mutation No.43 dated
26.11.1968. Respondent No.2 was allegedly a relative of
Muzaffar Qadir, the then Deputy Commissioner, Sahiwa]..
As such, an inquiry was initiated against the said Deputy
Commissioner regarding allotment of the land. A notice
in respect of the said inquiry was also served upon
Farzand Ali, but he did not opt to appear and
subsequently the inquiry proceedings were dropped
Further, it was alleged that said Farzand Ali also came to
know about allotment of the land in his favour on an
application submitted by some informer, but he did not
take any action or interest nor did he make any claim in
respect of said land during his life time. The land
purchased by Respondent No.2 was surrendered by her
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in favour of the Federal Land Commission vide mutation
No.18 dated 20,05.1978. Such land was later allotted to
Khadim Hussain and Jaffar Hussain, petitioners No.5 &
6, respectively.
3. It appears from the record that Farzand Au
died in the year 1978. The power of attorney attested by
him was witnessed by his son Bashir Ahmad, who also
happened to be marginal witness of power of attorney. He
never raised any objection regarding validity of the same,
Respondent No.1 (Nczzeer Ahmacl Khan.) after the death of
his father (Farzartd All) instituted a suit for possession on
20.01.1979 of the land originally allotted to his father
Neither any mutation, order or proceedings were
challenged nor any declaration regarding cancellation of
the power of attorney in favour of Muhammad Ameer was
sought by him. Even, the Federal Land Commission in
whose favour the land in question was surrendered by
Mst. Parveen Noon was not arrayed as a party in the suit.
Bashir Ahmad, the other son of Farzand Ali did not join
Respondent No.1 in filing of the suit rather he was
impleaded as a defendant therein. He died during
pendency of the suit and his legal heirs were impleaded
who did not support the claim of Respondent No.1 and
were proceeded ex-parte.
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4. After recording evidence of the parties, the suit
was dismissed by the trial Court, vide judgment & decree
dated 01.06,2000. The appeal filed against such
judgment & decree was also dismissed, vide judgment &
decree dated 28.07.2003. Thereafter, a Civil Revision was
filed in the Lahore High Court, Multan Bench, Multan.
This was disposed of vide impugned judgment dated
29.08.20 19 in the terms noted above. Hence, this
petition.
5. The learned ASC for the petitioners submits
that the impugned order passed by the Lahore High
Court in exercise of its revisional Jurisdiction is not only
in violation of Order 23 Rule 1, CPC but is patently in
excess of jurisdiction vesting in the High Court while
acting as the revisional Court. He maintains that
permission to file a fresh suit cannot be granted where
the defect in the original suit goes to the root of the case
and in any event a fresh suit by adding new parties and
seeking a different relief cannot be allowed to be
instituted decades after filing of the original suit. He
submits that by the time the suit of the Respondents
reached the revisional Court 48 years had already
elapsed in litigation and by not commenting on the fact
that the suit would patently be barred by limitation, the
High Court has ignored an express provision of order 23
Civil Petition No. 3772 of 2019 
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Rule 1, CPC which categorically provides that in any
fresh suit instituted on permission granted under order
23 Rule 1, CPC the plaintiff shall be bound by the Law of
Limitation in the same manner as if the first suit had
never been instituted. He finally submits that a condition
precedent for exercising powers under order 23 Rule 1,
CPC is that a suit which failed due to some formal defect
can be allowed to be re-filed after removing such "formal
defect" in the interest of justice. He further submits that
the suit of the Respondents did not suffer from any
"formal defect". He maintains that there were patent and
inherent defects in the suit touching the merits of the
case therefore permission to withdraw the same amounts
to granting permission to file a fresh and different suit,
seek a totally different relief by impleading more and
different parties which cannot be granted. He finally
argues that the High Court fell into error in setting aside
the detailed and well reasoned judgments of the trial
Court as well as the Appellate Court and passed the
impugned judgment which is not in consonance with the
relevant principles of law and amounts to condemning
the petitioners to go through the agony of another
protracted round of litigation potentially spanning over
decades for no fault on their part.
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Civil Petition No. 3772 of 2019 
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6.
The learned counsel for the Respondents on
the other hand has supported the impugned judgment
7.
We have heard the learned counsel for the
parties and gone through the record. It appears that
Farzand Ali and some others were co-sharers in a
property. Farzand Ali on 09.11.1968 through a registered
general power of attorney appointed one Muhammad
Ameer as his general attorney. In such capacity, he as
well as other sharers transferred their property vide
mutation No.43 dated 20.11.1968 in favour of Mst.
Parveen Noon (Respondent No.2). Respondent No-1
(Nazeer Ahmed Khan) is one of the sons of Farzand Au.
He after the death of his father without seeking
cancellation of the aforenoted power of attorney as well
as the relevant mutations filed a suit for possession
under Section 8 of the Specific Relief Act, 1877. The
record also indicates that his surviving brother Bashir
Ahmad did not join him as one of the plaintiffs and was
arrayed as a defendant in the suit despite being
necessary parties. Another necessary party namely the
Federal Land Commission was not arrayed as a
defendant either. At the same lime, Muhammad Ameer
who was acting as attorney of Farzand Ali and the other
co-vendors were not impleaded in the suit. In view of the
fact that where even the basic documents were not 
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Civil Petition No. 3772 of 2019 
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challenged, which continued to hold the field and on the
basis of such documents proprietary and possessory
right, title and interest in the property stood transferred
and was duly acted upon in all relevant records, a simple
suit for possession was not maintainable and was rightly
dismissed by the trial Court, vide judgment & decree
dated 01.06.2000 for the said reason. This judgment and
decree was correctly upheld by the Appellate Court vide
judgment & decree dated 28.07.2003.
8. We note that in granting permission to
withdraw the suit to file a fresh one, the High Court has
relied upon the provisions of Order 23 Rule 1, CPC
Before proceeding with the matter, it would be useful to
reproduce Order 23 Rules 1, CPC which reads as follows:
111. Withdrawal of suit of abandonment of part
of Claim. (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) that there are other sufficient grounds for
allowing the plaintiff to claim,
it may, on such terms as it thinks fit, grant the
plaintiff permission to withdraw from such suit or
abandon such part of a claim with liberty to
institute a fresh suit in respect of the subject-
matter of such suit or such part of claim.
(3) Where the plaintiff withdraws from a suit, or
abandons part of a claim, without the permission
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referred to in sub-rule (2), he shall be liable for such
costs as a Court may award and shall be precluded
from instituting any fresh suit in respect of such subject-
matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorize the
Court to permit one of several plaints to withdraw
without the consent of the others.
In terms of the aforenoted provisions of the
Code of Civil Procedure, a plaintiff who wishes to
withdraw his suit with permission to file a fresh suit
must show that there was a formal defect in the suit
which can result in failure of the same; In the instant
case, the record does not show that any application for
said purpose was moved before the High Court nor was
any formal defect appears to have been identified or
asserted before the learned High Court. Further, where a
defect is removable or rectifiable by amendment of the
plaint, permission to file a fresh suit cannot be granted
Finally, where a defect which goes to the root of the case
and is not merely a formal defect, permission to file a
fresh suit would amount to allowing the plaintiff to
retrace his steps plug the loopholes in the earlier suit
and file a different case with different/ additional parties
and a totally different relief. These to our mind are not
steps that could by thy stretch of the language be termed
as removal of formal defect. See Muhammad Boota v.
Member (Revenue), Board of Revenue (PLD 2003 Sc
Civil Petition No.3772 of 2019 
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979), Muhammad Kazim Ziauddin• Durrani v.
Muhammad Asim Fakharuddin Durrani (2001 SCMR
148), Am jad Rashid Khan Malik v. Shahida Naeem Malik
(1992 SCMR 485) and All Muhammad v. Rahmatullah
(1990 SCMR 913). As such, neither the suit can be
permitted to be withdrawn nor permission to file a fresh
suit be granted on that score.
9.
We also notice that in the instant case, both
parties had completed their evidence and the case had
been decided on merits by the trial as well as the
Appellate Court. The request for withdrawal was made
after decades before the revisional Court which appears
to be an attempt on the part of the Respondents to
retrace their steps, plug gaps and loopholes in evidence
and take a second shot at the relief that two Courts of
fact had denied. In the facts and circumstance of the
instant case, non-joinder and mis-joinder of the parties
could not be used as a ground for conditional withdrawal
of the suit and failure to seek declaration and
cancellation was an inherent and fatal defect which could
not be allowed to be cured at such belated stage.
10.
The term formal. defect that has not been
defined in the Code of Civil Procedure, its plain
in the context that the word has been used in the CPC
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appears to be that such defect should be only on the
point of form of the suit. It appears to connote every kind
of defect which does not affect the merits of the case
However, if the defect is material and substantial and
affects the merits of the case or goes to the root of the
claim it cannot be termed as a formal defect within the
scope and meaning of sub clause (a) of Rule 1(2) of Order
23, CPC. A perusal of the impugned judgment passed by
the High Court does not show which formal defects were
pointed out to the Court that persuaded it to not only
allow withdrawal but also to grant permission to file a
fresh suit. Unfortunately, the order of the High Court is
also silent on that score which leads us to believe that no
such formal defect was pointed out by the Respondents.
It is clear and obvious to us that the suit of the
Respondent suffered from a fatal defect. He filed a suit for
possession without seeking a declaration of title, knowing
that the property in question stood transferred on the
basis of registered instrument. The suit was in our
opinion stillborn from its very inception as it was not
competent. See Province of the Punjab v. Ohazanfar Ali
Shah (2017 SCMR 172), Sultan Mehmood Shah v. Din
Muhammad (2005 SCMR 1872) and Muhammad Aslam
v. Ferozi (HID 2001 Sc 213). It therefore follows that i
the suit was inherently and technically defective, the
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Civil Petition No.3 772 of 2019 
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defect could not be termed as a mere formal defect. If the
Respondent lingered it on for 40 years he has nobody but
himself to blame and cannot be presented with the bonus
of filing a fresh suit 40 years later. Nothing could be more
unjust.
11.
Order 23 Rule 1 (2), CPC also provides that the
limitation for filing of the suit would start from the date
when the original suit was instituted and it cannot start
from the date when the permission was granted for filing
of the fresh suit. The present suit appears to have been
filed initially on 20.01.1979 and it was alleged that even
at that time, it was barred by time. Even if limitation is
computed from the said date i.e. 20.01.1979 (the date of
institution of the first suit) permission could not have been
granted because more than 40 years had elapsed
between the alleged cause of action on the basis of which
the suit was filed and the date when the suit was actually
filed.
12.
That being so, a fresh suit on the basis of
permission granted by the Court would obviously be filed
40 years later and the lapse of 40 years between the time
that cause of action arose and filing of the fresh suit
cannot be condoned on the basis that a "formal defect"
was suddenly discovered in the High Court. The
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judgment of the High Court is silent on the said question
which appears to have escaped notice of the Court. We
are in no manner of doubt that a fresh suit, if filed
pursuant to the impugned judgment of the High Court
would be barred by time by 4 decades. It would be unjust
and unfair to force the parties to go through the agony of
the motions of yet another unnecessary round of
litigation if the question of limitation (which in the facts
and circumstances of this case is essentially a fait
accompli) is left to be decided by the trial Court. It would
doubtlessly be an exercise in futility and would provide a
rope to the Respondents to drag the petitioners into
further arduous and agonizing rounds of litigation
without there being any end to their miseries in the
foreseeable future. Nothing could, in our opinion, be
more inequitable and unjust.
13. The jurisdiction of the High Court as a
Revisional Court is limited to examining the question if
the lower fora have, (a) exercised jurisdiction not vested
in it by law or, (b) have failed to exercise jurisdiction so
vested or, (c) have acted in exercise of its jurisdiction
illegally and with material irregularity. Perusal of the
impugned judgment of the High Court shows that it
proceeds beyond the jurisdictional powers and
parameters of the High Court in its Revisional
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Jurisdiction and is therefore in our opinion not
sustainable.
14. For reasons recorded above, we convert this
petition into an appeal and allow the same. The
impugned judgment of the High Court dated 29.08.20 19
is accordingly set aside and the judgments & decrees of
the trial Court as well as the Appellate Court dated
01.06.2000 and 28.07.2003 respectively are restored,
affirmed and reiterated.
ISLAMABAD, THE
12th of August, 2021
ZR/ *
Approved For Reporting