Law:

Section:

(a) Civil Procedure Code (V of 1908)--- ----0. XXIII, R.1(2)---Withdrawal of suit with permission to file fresh one--Scope---When the Court comes to conclusion that the suit is likely to fail on account of a formal defect or other cause of like nature, only then permission to withdraw and to file fresh can be granted by the Trial Court---Application for such permission must specify formal defect---Generalised statement for such permission is not sufficient---Suit can be withdrawn as of right with permission to file a fresh suit under the provision of O.XXIII, R.1(2), C.P.C. Town Committee, Depalpur v. Ahmad Din and others PLD 1972 Lah. 290 rel. (b) Civil Procedure Code (V of 1908)--- ----0. XXIII, R.1(2)---Withdrawal of suit with permission to file fresh.one--Non-mentioning of the specific formal defect in application for withdrawal of the suit---Lower Appellate Court did not give any reason for grant of such permission---Validity---Order of the Lower Appellate Court -vas set aside and the case was remanded to the Court for decision afresh on application under OXXIII, R.1, C.P.C. JUDGMENT The respondents filed a suit for a declaration to the effect that they are the legal heirs of Janat Bibi daughter of Habib Ullah and as such entitled to her inheritance and that the defendants-petitioners have no right, title or interest in the same. Mutation No. 1094 sanctioned on 19-8-1979 was also challenged as being illegal and void. The suit was contested by the petitioners by filing written statement which led to framing of as many as 11 issues on which the parties went to trial. The learned Civil Judge by means of his judgment and decree dated 29-1-1983 dismissed the suit of the respondents. 2. Aggrieved respondents filed an appeal during the pendency of which the petitioners filed cross-objections. However, before the matter could be decided on merits an application was moved by the respondents for permission to withdraw the appeal as well as the suit and to institute a fresh suit. The learned Additional District Judge by means of his impugned order dated 27-5-1985 allowed the suit as well as the appeal to be withdrawn and permission was. granted to file a fresh suit…

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