The term “formal defect” used in the rule ibid is of significant importance. Formal defect is a defect which may be of technical nature. Law does not permit the knocking out the parties on the basis of technicalities. The object of sub-rule (2) of Order XXIII of “CPC” is to prevent the defeating of ends of justice on account of technicalities.
In order to further elaborate the term it can be said that following may be the most relevant instances of formal defect :-
(b) erroneous valuation of the subject matter.
(c) Insufficient description of the property involved in the suit.
(d) Failure to disclose a cause of action.
(e) Material document is not properly stamped.
(f) Non-impleading of necessary party.
(g) Form of suit etc.
It is also pertinent to mention here that the expression formal defect must be given a liberal meaning and should be of a nature as to entail dismissal of the suit but every kind of defect not going to the root of the case or not affecting the merits of the case.
WRIT PETITION No.1645 of 2021
M/S BEST WAY CEMENT LTD VS YASIR SALEEM ETC
Mr. Justice Mirza Viqas Rauf
08-09-2022
2022 LHC 7165
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