GUL SAHIB DIN AND Other vs Malik SULTAN JAN AND Other

ORDER

M. BURHANUDDIN KHAN, J.-By this petition leave to appeal is sought against the judgment and order dated 30-11-1981 of the Peshawar High Court in Civil Revision No. 443 of 1980.

2. The petitioners, had brought suit against respondents for declaration to the effect that they were in possession of- land in question as owners since 1903-1904 and were cultivating the suit land from the time of their forefathers and had paid no produce to any person and that it was only as a result of the recent Settlement that they were wrongly shown as tenants under the respondents and as such the entries required correction. In the alternative they prayed for possession of the suit land. The Court of the first instance dismissed their suit and the petitioners filed an appeal in the Court of Addi--tional District and Sessions Judge, Kohat, 'before whom the parties were present with their counsel when the counsel for the petitioners applied for the withdrawal of the appeal by a written application. The learned Addi--tional District Judge permitted the withdrawal of the appeal vide his order dated 25-9-1980 on the payment of costs of Rs. 300 to be deposited in the lower Court a week before the institution of the fresh suit.

3. The respondents filed a civil Revision against the order of the learned Additional District Judge, in the Peshawar High Court, and a learned single Judge, vide his impugned judgment, held that the application for the with--drawal of suit before the Additional District Judge, did not disclose any specific defects in the suit, and the application in that behalf was in vague and general terms. Thus it was held that the learned Additional District Judge acted in the same manner without mentioning particular defects in the form of suit which necessitated the permission of the withdrawal of the suit. Therefore, accepting the Revision, the learned High Court Judge remanded the case to the Additional District Judge for decision of the appeal on merits.

4. The learned counsel for the petitioner urged before us that the learned Judge of the High Court could not interfere with the order of the Additional District Judge under section 115, C. P. C., as it was not a case confined to the errors of jurisdiction ; the order of withdrawal by the learned Additional District Judge, was, therefore, unassailable ; and that the learned High Court also failed to appreciate the legal import of the words `formal defect' as mentioned in Order XXIII, rule 1, C. P. C.

5. We have examined the contentions of the learned counsel and come to the conclusion that the application for permission to withdraw the suit contains no particulars regarding the formal defects in the suit, and all what was stated therein was that in the plaint there were formal defects which may result in detriment to the rights of the petitioners. Secondly in the suit, the land under certain Khasra Numbers, which were in possession of the peti--tioners as mortgagee over a period of 60 years and so it was necessary to make the mortgagors parties to the suit and there were other co-sharers in the Shamlat who should also have been made defendants in the case. Thus the finding of the learned single Judge, so far as the application for withdrawal is concerned, is correct and we do not think there is any reason to interfere with the order of the High Court.

However, the petitioners would be at liberty to take any legal steps before the Court of first appeal, as are permissible under the law. The petition is dismissed.