2012 PLP 1795 (MLD)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioners herein, being plaintiffs of a family suit, through instant writ petition, have questioned the concurrent findings of the two Courts below, whereby the learned trial Court dismissed the suit of petitioners (except the prayer for recovery of maintenance of minors) vide its judgment and decree dated 26-1-2010 by declaring it to be barred by the principle of res judicata and not maintainable. The findings of the trial court were upheld by the Court of appeal when learned Additional District Judge/Izafi Zilla Qazi, Dir lower at Samar Bagh dismissed the appeal of the petitioners vide its judgment dated 16-6-2010, hence present writ petition. The petitioner No.1 and respondent No.1 entered into a marital bond in the year 1993 in lieu of a dower in the shape of twenty 'Tolas' of gold ornaments and a house. The relations between the parties for some period remained cordial, but after some time the petitioner/wife was compelled to file the suit for dissolution of her marriage along with recovery of above-said dower and maintenance allowance which was decreed in her favour by Judge Family Court vide its judgment and decree dated 28-4-2006, but the decision of the Family Court was modified in appeal by excluding the house as a part of dower and the appellate Court dismissed her suit to this extent alone vide its judgment dated 10-10-2006. During the pendency of her writ petition bearing No.1809 of 2006, she instead of seeking permission for amendment of her plaint, through C.M. No.647 of 2006, applied for withdrawal of her plaint with permission to file a fresh one, vide Civil Miscellaneous No.670 of 2006. Her said request was acceded to vide order dated 24-7-2007 and respondents present at that time accepted such permission on payment of costs of Rs.2000. Thereafter, the plaintiff/petitioner filed a suit for recovery of her house as part of dower, dowry articles and maintenance allowance for her minor children. Her said suit was decreed only to the extent of recovery of maintenance allowance of minor children but for rest of the claim, her suit was dismissed and such dismissal was upheld up to the appellate Court. Hence, present writ petition.

2. The learned counsel for the petitioner, on the very outset submitted that the finding of the two Courts below with regard to refusal of her claim in respect of house is entirely against the law and record of the case; that her present suit cannot be held to be barred by principle of res judicata as her earlier suit only to the extent of suit house was withdrawn by her with the permission of the Court to file a fresh suit. He further argued that after withdrawal of suit, the decree to the extent of dismissal of her suit with regard to suit house against the petitioners was no more in the field, so the findings of the Courts below that the judgment and decree of the appellate Court in previous round of litigation had attained finality, as the same was not set aside by this Court while disposing of her earlier writ petition, has no legal force behind it. He then submitted that by setting- aside of the findings of two Courts below, her suit be decreed along with costs. As against that, the learned counsel for respondent/husband, by supporting the findings of the two Courts below, submitted that since the judgment and decree of the appellate Court dated 28-4-2006 in previous round of litigation attained finality between the parties, as the same was not set- aside at the time of disposing of the Writ Petition No.1809 of 2006 and simply civil miscellaneous application for withdrawal of suit with permission to file a fresh one was allowed; that vide judgment dated 15-5-2008 in Civil Revision No. 19 of 2008, this Court too had held that the earlier judgment was intact and still in the field, so the present suit of the plaintiff/ petitioner was rightly declared to be barred by the principle of res judicata and the findings of the two Courts below call for no interference, as no illegality or irregularity in exercise of jurisdiction by the Courts below was pointed out.

3. The learned counsel for the parties were heard and record of the case was perused.

4. Perusal of the record would reveal that during the pendency of Writ Petition No.1809 of 2006 of plaintiff/petitioner, she initially asked for amendment of her plaint vide C.M. No.647 of 2006, but later on she, through C.M. No.670 of 2006, applied for withdrawal of her suit to the extent of suit house alone with permission to file a fresh suit instead of amending her plaint. Her said C.M. was allowed as the respondent had no objection to the acceptance of said application and consequently, her application for withdrawal of her present suit with permission to file a fresh one was allowed subject to payment of cost of Rs:2000 to respondent No.1. The respondent No.1 also received the said cost, however regarding the main writ petition it was held that the same having become infructuous is disposed of as such. Though, at the time of allowing the above- said C.M. of the petitioner, it was not held specifically that judgment and decree dated 28-4-2006 of the appellate Court impugned therein was set aside, but when the original suit to the extent of suit house wherein the said decree was passed/granted is withdrawn and is no more in the field, then any judgment/decree/order passed therein would automatically crumble down to the ground and would not remain in the field. Such a decree cannot be used as a shield that freshly filed suit with the permission of Court would be barred by the principle of res judicata. The perusal of the findings of the two Courts would further reveal that both the Courts have fallen into an error of law by holding that the previous judgment and decree dated 28-4-2006 of the appellate Court was in the field and attained finality, as the same was not set aside while the Writ Petition No.1809 of 2006 was being disposed of. Though no specific order for setting aside the decree was made at the time of disposing the writ petition, but the withdrawal of the suit itself would work as setting aside of the decree and would automatically wipe it out simply because the fresh suit of the petitioner was the outcome of the permission granted by this Court vide its order dated 24-7-2007 in above-said writ petition. Later on the findings of this Court in Civil Revision No. 19 of 2008 dated 15-5-2008 were also in support of the petitioners as the remaining decree was intact and to the extent of house, the suit was withdrawn with permission to file a fresh one. So such permission was within the parameters of Order XXIII, Rule 1 of C.P.C. Withdrawal of suit with permission to file a fresh suit will in no way create any bar of res judicata for the fresh suit and the same will also not be barred by Rule 1(3) of Order XXIII of C.P.C. Though the provisions of C.P.C. are not applicable in family matters, but the procedure provided in C.P.C. to achieve the ends of justice can well be adopted by the Courts seized of the matter. Hence, we have no option but to allow this writ petition by setting aside the findings of the two courts below and grant a decree regarding the house in question, but with no order as to costs. KMZ/144/P Petition allowed.