P L D 1959 (W (PLP)

Muhammad Shafi for Petitioner. Fazal Elahi for Respondents. Dates of hearing : 14th and 15th April 1959. The subject‑matter of this civil revision is an order passed by the learned District Judge, Jhelum, allowing a suit to be with drawn with liberty to file a fresh suit. This suit was filed by the respondents to this petition who are members of the proprietary body of what was originally only village Chakwal and which has now by slow process of evolution become a Municipal. Committee. It became a Notified Area in the first instance and then‑ a Small Town and ultimately a Municipal Committee. The property in dispute is the site of a pond. The allegations in the plaint were that this pond belonged to the proprietary body of village Chakwal of which the plaintiffs were members. The defendant to the suit was the present petitioner, the Municipal Committee of Chakwal. The petitioner denied that the property in dispute belonged to the proprietary body. The material issues in the suit were whether the plaintiffs were the owners of the property in dispute and whether the defendant had been in adverse possession for more than twelve years. In support of their claim to ownership the plaintiffs produced copies from the revenue records of 1860 wherein Khasra No. 234 which was a pond, was shown as owned by the proprietary body. They at the same time examined as a witness a Tahsildar who had been directed by some higher officer to report as to whether the property in dispute belonged to the proprietary body or to the Municipal Committee and who had made a report in favour of the respondents. This witness orally stated that he had examined the spot and made a report in favour of the respondent, but when an effort was made by the respondents to prove his report, an objection was raised that the report was not relevant under section 35 of the Evidence Act. This objection was upheld by the trial Court with the result that the witness was not questioned further at all. The respondents also produced in evidence a resolution passed by the petitioner admitting ownership of the plaintiffs with respect to a pond. The trial Court did not find the issue as to ownership in favour of respondents because of want of proof on the file that the site in dispute was the same as Khasra No. 234 of the year 1860, or one with respect to which the resolution of the petitioner had been passed, and dismissed the suit.

2. On appeal the District Judge found that the case of the respondents had not been properly conducted. He was of opinion that so far as the evidence of the Tahsildar was concerned, the trial Court had correctly disallowed, proof of his report and that the proper course was to allow the witness to refresh his memory from the report and to make a statement in the witness‑box with respect to the identity of the land, which course had not been adopted. There was no proof also of the identity of site in dispute with khasra No.

234. An application was submitted to him for permitting the withdrawal of the suit. Dealing with this application the learned Judge said :‑ "I feel that this case was not properly conducted. In the first place, the disputed property, according to the plaintiffs, was in the settlement of 1860, represented by field No.

234. A copy of the khasra abadi of this village prepared in the settlement of 1860 (Exh. P. 11) has been put in, which shows that there is a pond in the field No. 234, which is shamilat deh. No attempt was made .to have the property in dispute co ordinated with field No. 234 of .1860. Similarly, Khan Taj Muhammad Khan, Tehsildar of Chakwal, who ‑ is said to have made measurements regarding the location of this property as early as in 1943 under the orders of the Sub‑Divisional Officer, Chakwal and to have made a report regarding his finding, was called and examined as P. W.

1. But the only question put to him was if he had made any report in connection with this property. The learned Civil Judge refused to admit the report in evidence and in my opinion rightly. Instead of getting the report proved, learned counsel, who represented the plaintiffs in the lower Court, should have asked the witness as to whether he had conducted measurements on the spot regarding the location of the disputed property and if so should have asked him to refresh his memory with the papers attached to his report and then got from him the date on which he arrived at his conclusion. This was not done. Thirdly, I have been referred to certain resolutions of the Municipal Committee (defendant) regarding a pond. Now it is admitted that there are several ponds within the Municipal limits of Chakwal and it has not been shown to which out of those ponds these resolutions relates. I find one of the resolution No. 9 dated 27‑5‑17 (copy Exh. P. 2) on the record wherein the Municipal Committee admitted that the then disputed plot belonged to the malkan deh. No attempt was made by either side to show as to whether or not this particular resolution, which is a very important admission on behalf of the defendant Committee, related to the property in dispute. These and several other omissions have led to there being no fair conduct and hence trial of the case". On these grounds he considered it was proper to allow the suit to be withdrawn with liberty to file a fresh suit.

3. Before me it is contended that Order XXIII, rule 1, C. P. C. does not contemplate a case where a party does not properly conduct 'his case and does not lead all the evidence that he should. It is urged that if the party has not been negligent, further evidence should be allowed in that very suit and if on the other hand it is found that there is no case for allowing additional evidence, then there is no reason why the provisions relating to additional evidence should be avoided by allowing him to file a fresh suit. I do not say that there is no force in these contentions. It does not seem fair that if a plaintiff does not adduce 'proper proof he should be allowed a further opportunity to withdraw the suit with liberty to file a fresh suit although the provisions relating to additional evidence do not cover his case. However, there are two reasons why I would not interfere in revision in the present case. The first is that although the order of the learned District Judge does, at first sight, give the impression that he is only trying to relieve the plaintiffs of the effect of failure to lead evidence, it appears on a closer reading of his judgment that his real reason is a lacuna on the file, i.e., the absence of proper proof connecting the site in dispute with the evidence that is produced. This does make a difference because whereas the Court may not allow further evidence just because parties have failed to produce all the evidence that was needed, the Court has full power to order further evidence where it feels there is a lacuna particularly when that lacuna is caused by misconception or an oversight. The learned District Judge could under these circumstances have ordered production of further evidence, but if he thought interest of justice would be better served by a fresh trial he cannot be said to have acted illegally or with material irregularity.

4. The second reason is that there are a number of cases where on similar grounds withdrawals have been allowed though there is authority to the contrary also. The most important of these cases is Gurprit Singh v. Punjab Government (A I R 1946 Lah. 429), wherein it was held that the words "other sufficient grounds" in Order XXIII, rule 1 do pot necessarily refer to a ground which is ejusdem generis with a formal defect. The defect in that case was that though the plaintiffs had pleaded ownership of the land in dispute as well as occupancy rights in the alternative, counsel for the plaintiffs had given up the plea of occupancy rights at any early stage of the suit with the result that evidence with respect to it was not brought on the record and also on account of the abandonment of the plea the High Court found it impossible to give relief to the plaintiffs although it appeared to the High Court that the plaintiffs had a really good case with respect to, occupancy rights. The observations made by the learned Judges in that case are important for I find a degree of similarity between that case and the one with which I have to deal. The case also provides an answer to the argument of learned counsel that Order XXIII, rule 1 is not intended to cover a case where the Court allows withdrawal because evidence on the record is insufficient to prove the plaintiff's case and additional evidence cannot be ordered. In that case at first a prayer had been made before the learned Judges that the plaintiffs be allowed to lead additional evidence. The learned Judges, however, did not find it possible to accede to this request because of the judgments of their Lordships of the Privy Council defining the limits within which the Court has to act while allowing additional evidence under Order XLI, rule

27. Dealing with the application for additional evidence and the subsequent prayer for withdrawal, the learned Judges said :‑ "Counsel for the appellants argues that the appellants as well as their predecessors‑in‑interest have been in constant occupation of this land since 1860 and that even Government itself has treated their tenure as transferable and heritable. They have expended huge sums on effecting improvements on the land in suit and even if it were found that they were not the owners thereof, their status was much higher than that of mere non‑occupancy tenants. Unfortunately, that aspect of the case has not been investigated as their counsel wrongly made a statement at the commencement of the trial that he abandoned that relief and the appellants have thus been seriously pre judiced in the conduct of their case. They had succeeded in tracing certain old documents which threw sufficient light on the matter at issue and he consequently prayed on this behalf that they may be permitted to lead additional evidence. Faced, however, with the difficulty of bringing his case within the four corners of Order XLI, rule 27, Civil P. C., especially in the light of the observations made by their Lordships of the Privy Council in 10 Pat. 654 at p. 668, counsel eventually gave up this position. He then made an application that inasmuch as the appellants' case has been misconceived and mishandled, and for a mere formal defect they ran the risk of losing a vast estate of which they and their predecessors in title have been in occupation for nearly three‑quarters of a century, in the interest of justice they may be allowed to withdraw the suit with liberty to bring a fresh suit in respect of the same subject‑matter. The Advocate‑General, however, resisted this appli cation urging that this Court could not grant them the necessary leave as the suit was not failing by reason of any formal defect or for any other reason analogous thereto". The learned Judges then referred to some judgments and holding that the other sufficient grounds need not be ejusdem generis or even analogous to former defects granted leave to withdraw the suit.

5. It will be observed that one of the reasons why leave was granted that Order XLI, rule 27, did not cover the case and that it was not possible to allow the plaintiffs to lead further evidence. Therefore leave was granted in a case where a party had been unable to prove his case for one reason or the other. It had been stated by counsel for the plaintiffs that the case had been misconceived and mishandled and this apparently had been accepted by the learned. Judges So it is riot possible for learned counsel for the petitioner to argue that a plaintiff cannot be allowed to withdraw his suit because his case has been mishandled.

6. A recent case' of this Court is Muhammad Shafi v. Nawab (P L D 1957 Lah. 648), wherein Ortcheson, J. had refused to set aside in revision a withdrawal of a suit which had been granted because there was some evidence which was not available or not known to the plaintiff at the time when evidence was being allowed. Ortcheson, J. was of the opinion that this evidence if produced would have supported the case of the plaintiffs. This .too is a case where a party vas going to fail for want of proper proof and withdrawal was granted. In Chandrika Lal v. Sami Nath (A I R 1929 All. 133), a mortgage decree which could have established the right of the plaintiffs had not been produced and withdrawal was allowed on the ground that the party would fail for non‑production of the decree. In Jhunku Lal v. Bisheshar Das (I L R 40 All. 612), it was held that failure to give formal proof of a document which was essential for success of the plaintiff could be a ground for allowing with drawal of the suit.

7. There are some authorities laying down that the fact that the plaintiff had not been able to prove his case is not a ground for allowing withdrawal of the suit. Sivagaminatha Pillai v. venkitaswami Nicker (1949 Mad. 295) and Ram Saran Mandal v. Radha Raman Mandal (A I R 1929 Cal. 88), were cited before me in this connection but in the first place the case before me is, as I have already explained, not one where the ground for withdrawal should be described in this manner. Actually it is a case of a lacuna with respect to the identity of land. But in any case I would follow the judgments of our own Court. I do not see how in the case of Gurprit Singh v. Punjab Government I can hold that an exercise of the power of Court to allow withdrawal on a consideration of the fact that the plaintiff has not produced all the evidence which it was possible to produce, is not within Order XXIII, rule 1, C. P. C. at all, though I would still not agree that the Court can always grand leave to help a plaintiff who has failed to adduce all proof. I may also say that I do not see much difference between a case failing on the ground that the counsel for the party misconceived the evidence which he had produced and a case where he miscon ceived a plea which he has to take. Learned counsel for the petitioner admits that in a case where counsel for a party misconceives a plea which he should put forward there can he no legal objection for allowing withdrawal of the suit. This he is forced to concede in view of what happened in Gurprit Singh v. Punjab Government.

8. A point was urged before me that a revision does not lie and my own judgment in Mst. Fatima v. Sardara (P L D 1956 Lah. 474) was relied upon. I stated therein that insufficiency of the grounds for withdrawal could not be the basis of an application in revision. Let me clarify that a revision would lie if an order allowing withdrawal of a suit was based on grounds which are not con templated by Order XXIII, rule 1, at all. That would bean irregular exercise of a jurisdiction vested in the Court. If the t ground was of a kind which was within the purview of Order XXIII, rule 1, then whether under the circumstances it wad sufficient or not is not a matter into which a revisional Court is to go.

9. Let me clarify that I am not granting to the Court plenary power to permit withdrawal whenever a plaintiff has failed to adduce all evidence to prove his case. A withdrawal the sole object of which is to relieve the plaintiff of the effect of his negligence is not producing evidence, or to evade the limitation on the Court's power of allowing additional evidence, is an abuse of power of Court and is not within Order XXIII, rule

1. In order that the Court may allow withdrawal of suit in a case where proof is insufficient, there must at the same time be some equity in favour of the plaintiff (e.g., misconception of the kind of proof he should produce, failure to give formal proof of a material document etc.) which entitles him to some consideration.

10. This revision is dismissed with costs. A. H Petition dismissed,