2014 M L D 78

[Peshawar]

Before Mrs. Irshad Qaiser, J

KHUDADAD and others---Appellants

Versus

GHULAM AHMAD and others---Respondents

Civil Revision No.226 of 2010, decided on 18th July, 2013.

(a) Civil Procedure Code (V of 1908)---

----O.XXIII, R.1 & O.VII, R.11---Specific Relief Act (I of 1877), S.8---Suit for possession of
immovable property---Withdrawal of suit---Scope---Plaintiff filed suit wherein defendants
moved application for rejection of plaint which was accepted by the Trial Court but Appellate
Court remanded the case for decision on merit after recording evidence---Validity---Plaintiff
filed suit after withdrawal of former suit with regard to same land which was mentioned in the
previous suit---Subject matter and relief in both the suit were same---No permission to institute
fresh suit was sought by the plaintiff and suit was simply dismissed as withdrawn---Plaintiff
should be precluded from institution of fresh suit in respect of same subject matter or such part
of claim---Appellate Court had not applied its conscious mind to the facts of the case and
recorded its findings without appreciating the law applicable to the present case---Order passed
by the Trial Court was legal, lawful and was based on the facts and circumstances of the case---
Judgment and decree of the Appellate Court were based on non-reading and misreading of
evidence and were without jurisdiction---Findings of the Appellate Court warranted interference
by the High Court in its revisional jurisdiction---Revision petition was accepted and order of the
Trial Court was maintained and that of the Appellate Court was set aside and plaint was rejected.

2013 SCMR 464 rel.

(b) Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1---Withdrawl of suit---Scope and object of O.XXIII, R.1, C.P.C.---Withdrawl

of suit could be done at any time without the prior permission of the court---Plaintiff could
withdraw his suit where he did not desire to institute a fresh suit and permission to withdraw the
same was not necessary---Object of rule was to prevent the plaintiff from filing a fresh suit after
having failed to conduct the first one with care and diligence---Plaintiff had the right to withdraw
his suit whenever he desired but he could not file a fresh suit on the same subject matter unless
permission was sought for filing the same.

Shafique Tanoli for Appellants.

Qazi Rashid Ahmad Arshad for Respondents.

Date of hearing: 18th July, 2013.

JUDGMENT

MRS. IRSHAD QAISER, J.---Petitioners-defendants Khudadad and Muhammad Sadiq

sons of Fazal Dad filed the present revision petition against the judgment and decree dated 7-4-
2010, passed by the learned Additional District Judge-III, Haripur, whereby appeal of the
respondent Ghulam Ahmed against the judgment and decree of Civil Judge-I, Haripur dated 3-
11-2009 in Civil Suit No.37/1 was accepted and the suit of the respondent in respect of
possession of the suit property measuring 1 Kanal 14 Marlas was remanded back to the trial
Court with the direction to decide the case on merit after recording pro and contra evidence of
the parties.

2. Laconic facts of the case, as are unfolded in the plaint are that plaintiff/respondent
Ghulam Ahmed filed Suit No.37/1 for possession of property measuring 1 Kanal 14 Marlas
situated in Khasra No.235 Mouza Barila Tehsil and District Haripur. In the plaint it is contended
that in the suit bearing No.162/1 dated 14-2-2006 a local commission was appointed and as per
intervention of the elders of the locality an area of 5 Marlas was given to the defendant but they
forcibly possessed the remaining area of 1 Kanal 14 Marlas. Hence, he was compelled to file the
suit.

3. Defendants were summoned. They appeared and submitted application under Order VII
Rule II of C.P.C. The learned lower Court after obtaining written reply and hearing of arguments
rejected the suit of the respondent vide judgment and decree dated 3-11-2009 by holding that in
the previous case plaintiff filed the declaratory suit over the whole area measuring 1 Kanal 19
Marlas. So after withdrawal simpliciter dated 10-2-2009 he cannot bring the instant suit. Feeling
aggrieved respondent filed appeal which was accepted vide judgment and decree dated 7-
4-2010 and the judgment and decree of lower Court was set aside and case was remanded back
to the learned trial Court with the direction to decide the case on merit after recording pro and
contra evidence of the parties.

4. I have heard learned counsel for the parties and perused the record with their assistance.
5. Learned counsel for the petitioner contended that prior to the Suit No.137/1 the
respondent has filed a Suit No.162/1 on 14-2-2008 for declaration, perpetual injunction and for
possession as alternative relief to the effect that he is owner of the house and land measuring 1
Kanal 19 Marlas which is allegedly purchased by him vide registered deed No.236 dated 15-9-
1999. That suit was contested by the petitioners/defendants. Issues framed. Evidence of the
parties was recorded. Local Commission was also appointed for spot inspection and
reconciliation between the parties. That commission inspected the spot and was succeeded to
reconciliate the dispute between the parties and it was agreed that the plaintiff will withdraw the
suit and disputed property will remain with the defendant. On 10-2-2009 plaintiff moved an
application for unconditional withdrawal of the suit as per proceeding of the Local Commission
and consequently vide order dated 10-2-2009 the suit was dismissed as withdrawn. That the
subject matter in both the suit is the same. In the previous suit there was an alternative relief for
possession of 1 Kanal 19 Marlas of land and to hook wink with the law in subsequent suit,
respondent claimed possession of 1 Kanal 14 Marlas of land, the learned Additional District
Judge-III terms it a different cause of action which is illegal. The respondent is precluded from
instituting any fresh suit in respect of same subject matter or such part of them under Order
XXIII (23), Rule 3 of C.P.C. as the previous suit was withdrawn unconditionally. He is estopped
to file fresh suit on the same cause of action. In support of his arguments he relied upon PLD
2001 SC (AJK) 30, 2003 MLD Lahore 960, 1991 MLD 571, PLD 2001 SC 325, 2000 CLC
Karachi 1524.

6. These arguments were rebutted by counsel for the respondents, supported the impugned
judgment and decree passed by the learned Additional District Judge. He argued that the plaintiff
instituted the earlier suit for declaration and possession as an alternative relief of the suit
property measuring 1 Kanal 19 Marlas, whereas the subsequent suit was only for possession of
land measuring 1 Kanal 14 Marlas, therefore, the cause of action, nature and character of relief
claimed in both the suit are different. That respondent/plaintiff withdrew his previous Suit
No.162/1 of 2006 in pursuance of compromise effected by the local commission and the
respondent has categorically mentioned in his application for withdrawal of suit that he wants to
withdraw the suit in the light of compromise. Therefore, the said withdrawal of suit cannot be
called as withdrawal simpliciter. He further contended that though local commission submitted
his report Exh.CW1/1 wherein it is mentioned that the disputed place in the shape of
house/Khola is in possession of defendant but the report was not confirmed. However, objection
was raised by the plaintiff that only to the extent of 5 Marlas in the shape of house/Khola has
been given to the defendant which is available on the file and it remain undecided. That plaintiff
has been able to prove that only 5 Marlas of land in the shape of house/Khola was given to the
defendant and only to that extent he relinquished his right and when the defendant forcibly
occupied the remaining 1 Kanal 14 Marlas, then plaintiff has the right to claim possession. That
his suit is not hit by Order-XXIII (23) Rule 3 C.P.C. He relied on PLD 2000 Karachi 58, 1990
SCMR 978, 2003 SCMR 1704, 2004 MLD Lahore 943, PLD 1992 Karachi 423, PLD 1999
Lahore 340, 2003 SCMR 1284.

7. Both the learned counsel for the parties have addressed their arguments for and against
the proposition which is confronting me as to whether the subsequent suit filed by the
plaintiff/respondent is hit by Order-XXIII (23) Rule 3 C.P.C. or not. To have a correct perception
of the proposition involved, I may refer to Order XXIII (23) of C.P.C. which reads as follows:--

"Withdrawal of suit or abandonment of part of claim. (1) At any time after institution of a
suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of
his claim.
 2. Where the Court is satisfied;?

(a) That a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute fresh suit for
the subject matter of a suit or part of claim.

It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from
such suit or abandon such part of a claim with liberty to institute a fresh suit in respect
of the subject matter of such suit or such part of claim.

3. Where the plaintiff withdraws from a suit, or abandons part of a claim, without the
permission referred to in sub-rule 2, he shall be liable for such costs as the Court may award and
shall be precluded from instituting any fresh suit in respect of such subject matter or such
part of the claim."

8. The plain reading of the above order shows that sub-rule (1) contemplates withdrawal of
suit which can be done at any time without the prior permission of the Court but under sub-rule
(2) the plaintiff may on application withdraw from the suit with liberty to institute a fresh suit.
Where he does not desire to institute a fresh suit he can withdraw his suit and permission to
withdrew is not necessary. The object of rule is to prevent a plaintiff from filing a fresh suit
after having failed to conduct the first one with care and diligence. The plaintiff has the right to
withdraw his suit whenever he desires but he cannot file a fresh suit on the same subject matter
unless permission is sought for filing fresh suit. Reference is made to 2013 SCMR 464, wherein
it is held;

"From the clear language of the above, it is vivid and manifest that the noted rule mainly
comprises of two parts; sub-rule (1) entitles the plaintiff of a case to withdraw his suit and/or
abandon his claim or a part thereof, against all or any one of the defendants, at any stage of the
proceeding and this is his absolute privilege and prerogative Note: except-in certain cases where
a decree has been passed by the Court such as in the cases pertaining to the partition of the
immovable property etc.). And where the plaintiff has exercised his noted privilege he shall be
precluded from instituting a fresh suit on the basis of the same cause of action qua the same
subject matter and against the same defendant (s) and this bar is absolute and conclusive, which
is so visible from the mandate of sub-rule (3) However, sub-rule 2 (a) (b) is/are a kind of an
exception to the sub-rules (1) and (3), in that, where a plaintiff wants to file a fresh suit after the
withdrawal of his pending suit on the basis of the same cause of action about the same subject
matter and the same defendant (s), he shall then be obliged to seek the permission of the Court in
that regard; however such permission shall not be granted as a matter of right or as a matter of
course/routine, rather the judicial conscious of the Court should be satisfied that, if the
permission is not given the said suit shall fail on account of any formal defect, (Note: for the
present what is a formal defect is not a moot point therefore, this aspect is not being touched
herein) or that there are other sufficient grounds for allowing the plaintiff to withdraw the suit
with a permission to institute a fresh suit ; in respect of "sufficient grounds" no hard and fast
criteria can be laid down and it depends upon the facts of each case, whether a case in that regard
is made out or not. However, it is the legal requirement that where the plaintiff is asking for the
permission of the Court to file a fresh suit, in his request in that behalf, he must elucidate and
explain to the Court the reason(s) for the withdrawal, justifying for the permission of the Court."

9. In the present case in order to appreciate the view point of the learned counsel for the
parties, the substance of withdrawal and the circumstances in which the order was passed is of
paramount importance. The gist of which is as under:--

Plaintiff/respondent filed a Suit No.162/1 on 14-2-2006 for declaration to the effect that
he is the owner of the house and the land underneath measuring 1 Kanal 19 Marlas which he
alleged to purchase by him through registered sale deed No.236 dated 15-9-1999 along with
consequential relief of perpetual injunction and for possession as alternative relief. The
petitioner/defendant appeared and contested the suit by submitting written statement. Issues
framed, evidence recorded and vide order dated 16-10-2008 the trial Court appointed local
commission for spot inspection and reconciliation between the parties. The commission
inspected the spot and tried his level best to reconciliate the dispute between the parties and
submitted his report Exh.CW1/1 wherein the following observation was made by the
commission:--

Compromise deed Exh.CW1-A was also executed between the parties which was duly signed by
parties and the marginal witnesses wherein it is stated:-

But after submission of report the plaintiff objected the report of commission through
objection petition. Statement of commission was recorded as CW. On 10-2-2009 plaintiff
submitted an application for withdrawal of suit. The contents of the application as under;--

His statement before the Court was recorded overleaf of the application which was duly
verified by his counsel Qazi Raheed Ahmed Advocate. The statement of plaintiff is reproduced
as under:--

Consequently vide order dated 10-2-2009 the suit of the plaintiff was dismissed as
withdrawn. The order dated 10-2-2009 of trial Court is reproduced as under:--

"Plaintiff along with counsel present and submitted an application for withdrawal of the
instant suit in hand. His statement to that effect recorded at the back of withdrawal application.
Withdrawal application is EX: PA while ID card copy of the plaintiff is EXPB.

Keeping in view EXPA and statement of the plaintiff overleaf it, suit of the plaintiff is
dismissed as withdrawn"

On 13-2-2009 after three days he again filed another suit bearing No.37/1 of 2009 for
possession of the same land measuring 1 Kanal 14 Marlas which was mentioned in the previous
suit i.e.1 Kanal 19 Marlas. The subject matter in both the suit was the same. In the subsequent
suit he prayed for possession and this relief was also sought by plaintiff in former suit.

In the light of what has been discussed above, I am of the candid view that the present
withdrawal was not sought by the petitioner in term of sub-rule (2) (a) (b) of Order XXIII and the
suit was simply dismissed as withdrawn and Order XXIII, Rule 3 of C.P.C. clearly provides that
where the plaintiff withdrew from the suit without permission to bring fresh one, he shall be
precluded from institution of fresh suit in respect of same subject matter or such part of claim.

In view of the forgoing discussion, this Court finds that the appellate Court while
exercising the jurisdiction had not applied its conscious mind to the facts of the case and
rendered its finding without legally appreciating the law applicable to the present case. Thus
the said finding warrants interference by this Court in its revisional jurisdiction.

Accordingly for the reasons stated hereinabove this revision petition is accepted by
holding that the order passed by the learned trial Court dated 3-11-2009 is legal, lawful based on
the facts and circumstances of the case while the judgment and decree of appellate Court is based
on non-reading and misreading of ,evidence and is without jurisdiction. Thus, the order of the
learned trial Court dated 3-11-2009 is maintained and the judgment and decree of appellate
Court is set aside and the plaint is rejected.

No order as to costs.

AG/501/P Revision accepted.