In terms of the Order 23 Rules 1, Code of Civil Procedure, a plaintiff who wishes towithdraw his suit with permission to file a fresh suitmust show that there was a formal defect in the suitwhich can result in failure of the same; In the instantcase.......

 In terms of the Order 23 Rules 1, Code of Civil Procedure, a plaintiff who wishes towithdraw his suit with permission to file a fresh suitmust show that there was a formal defect in the suitwhich can result in failure of the same; In the instantcase, the record does not show that any application forsaid purpose was moved before the High Court nor wasany formal defect appears to have been identified orasserted before the learned High Court. Further, where adefect is removable or rectifiable by amendment of theplaint, permission to file a fresh suit cannot be grantedFinally, where a defect which goes to the root of the caseand is not merely a formal defect, permission to file afresh suit would amount to allowing the plaintiff toretrace his steps plug the loopholes in the earlier suitand file a different case with different/ additional partiesand a totally different relief. These to our mind are notsteps that could by thy stretch of the language be termedas removal of formal defect.

The term formal. defect that has not beendefined in the Code of Civil Procedure, its plainin the context that the word has been used in the CPC appears to be that such defect should be only on thepoint of form of the suit. It appears to connote every kindof defect which does not affect the merits of the caseHowever, if the defect is material and substantial andaffects the merits of the case or goes to the root of theclaim it cannot be termed as a formal defect within thescope and meaning of sub clause (a) of Rule 1(2) of Order23, CPC.

Order 23 Rule 1 (2), CPC also provides that thelimitation for filing of the suit would start from the datewhen the original suit was instituted and it cannot startfrom the date when the permission was granted for filingof the fresh suit.

jurisdiction of the High Court as aRevisional Court is limited to examining the question ifthe lower fora have, (a) exercised jurisdiction not vestedin it by law or, (b) have failed to exercise jurisdiction sovested or, (c) have acted in exercise of its jurisdictionillegally and with material irregularity.

Civil Petition No.3772 of 2019

Muhammad Yousaf & others VERSUSNazeer Ahmed Khan (deed) through LRs, etc