Expression "formal defect" ---Meaning---Suit framed under the provisions of C.P.C. if not arranged in accordance with O.VI, Rr.1, 2, 3, 4, 14, 15 or O.VII, Rr.1 to 7, C.P.C. would be deemed to be suffering from "formal defect"

 2001 S C M R 148

Under C.P.C. expression "formal defect" has not been defined anywhere. As such, we have to refer to its meaning as per dictionary which reads as under;--

"The want or absence of some legal requisite; deficiency; imperfection; insufficiency. The want or absence of something necessary for completeness or perfection; a lack or absence of something essential to completeness; a deficiency in something essential to the proper use for the purpose for which a thing is to be used (Black's Law Dictionary, Vth Edition, page 376)."

From perusal of above meaning of the word "defect" conveniently it can be visualized with reference to a suit framed under the C.P.C. that if it is not arranged in accordance with Order VI, Rules 1 to 4, 14, 15 or Order VII, Rules 1 to 7, C.P.C. then it would be deemed that suit suffers from defect. However, such defect itself shall not be sufficient to grant permission to withdraw the suit unless it is not shown that for any one of formal defects the suit is likely to fail, which mean that the nature of the defect must be apparent but not latent because as far as former category of defect is concerned, it is visible and is not liable to be explored after an inquiry, because if there is procedural departures in the form or arrangement of the suit obviously it would be apparent and if there is substantial defect in the suit, it would fall under the latter category which can only be unerathed after recording of evidence. Therefore, permission can only be granted to remove a defect, which is apparent or formal and its presence in the suit may fail it, but if it is latent and touches merits of the case, then permission to withdraw the suit on this score cannot be granted. Reference in forming this opinion is placed on the cases of Muhammad Din v. Atta Muhammad and others (PLD 1957 (W.P.) Lahore 971), Ahmad Bakhsh v. Allah Bakhsh and another (PLD 1962 (W.P.) Lahore 476), Aqil Hussain v. Muhammad Sadiq and 7 others (1986 CLC 1316) and Ahmad Din and 3 others v. Town Committee, Depalpur (1972 SCMR 203).