2013 PLP 1236 (CLC)

RAJA SAEED AKRAM KHAN, J.

This appeal, with the leave of the Court, has been filed against the judgment and decree passed by the High Court on 27-4-2004, whereby the appeal filed by the respondents is accepted.

2. The brief facts of the case are that Mst. Minni, deceased, now survived by the legal heirs and one Mst. Resham Jan filed a suit for joint possession in the Court of Sub-Judge, Muzaffarabad on 1-1-1974, challenging therein Mutations Nos.44 and 181 pertaining to land situated in village Mirsamdani, Tehsil, Muzaffarabad. During the pendency of the suit, Mst. Minni filed an application on 17-6-1975 for withdrawal of suit to her extent. Before any order being passed on the application, she sought the withdrawal of that application on 5-10-1975 on the ground that defendants have fraudulently induced her to file application for withdrawal of suit who have not acted upon the agreement that formed the basis for withdrawal of suit. The trial Court turned down her application dated 5-10-1975 while dismissing the suit to her extent on 13-12-1980 by accepting her withdrawal application with the observation that she may file a separate suit in view of alleged fraud. The judgment passed by the trial Court on 13-12-1980 was challenged while filing appeal before the District Judge which met the same fate and dismissed on 20-5-1984. Admittedly, no further appeal was filed by the plaintiff-respondent against the judgment of District Judge dated 20-5-1984, which attained finality.

3. Mst. Minni, deceased, respondent No.1, now survived by legal heirs filed another suit on 3-5-1995. The defendants-appellants filed an application under Order VII, rule 11 of C.P.C. for dismissal of the suit. The trial Court on 14-5-1995 dismissed the suit of the plaintiff-respondents under Order XXII, rule 1 of C.P.C. and on the ground of estoppel and res judicata. Against the judgment/order of the Civil Judge, the plaintiff-respondents filed an appeal before the Additional District Judge which also met the same fate vide judgment dated 31-1-2000. Dissatisfied from the judgment of the Additional District Judge dated 31-1-2000, the plaintiff-respondents filed second appeal before the High Court. The learned Judge of the High Court while accepting second appeal set aside the judgments and decrees recorded by the Courts below. It was observed that the plaintiff-appellant is allowed to withdraw the application filed for withdrawal of the suit and remanded the case to the trial Court with the direction to proceed in the case in accordance with law. Hence, the instant appeal, with leave of the Court has been filed against the said judgment of the High Court.

4. Mr. Muhammad Yaqoob Khan Mughal, Advocate, the learned counsel for the appellants, has argued that the judgment and decree passed by the High Court is against law and facts of the case. He argued that the High Court failed to interpret the relevant provisions of law i.e. Orders XXII, XXIII rule l and section 11 of C.P.C. in its true perspective. He also argued that the High Court failed to adhere to the law laid down by the apex Court in Civil Appeal No.109 of 1999 titled Shaukat Habib and others v. Raja Muhammad Bashir and another. He further argued that the High Court failed to consider the legal effect of the judgment and decree of the Court of Additional Sub-Judge/Civil-Judge Muzaffarabad dated 13-12-1980 and 25-4-1985 as well as the judgment and decree of the District Judge Muzaffarabad dated 20-5-1984 as the same have attained finality for not having been appealed before the higher forum, therefore, the matter could not be reopened by a single Judge in the High Court when the said judgments and decrees were not subject of appeal before the learned Judge. He argued that the High Court also erred in law while not taking into consideration that the suit filed by the plaintiff-respondents have been declared as abated to the extent of Mir Zaman sons of Faqeer (predecessor-in-interest of the appellants and pro forma respondents Nos.2 to 7) as the same were not open to be revived by a learned single Judge in the High Court when there was no appeal before the learned Judge in that regard which amounts to setting aside all the aforesaid judgments and decrees without filing of an appeal or revision against the same, therefore, the judgment and decree of the High Court is not sustainable in the eye of law. He argued that the High Court erred in law while ignoring this fact that after abatement and dismissal of both Suits Nos.1 of 1974 and 28 of 1976 vide judgment and decree dated 13-12-1980, 20-5-1984 and 25-4-1985 referred to above, there remained no suit pending against Mir Zaman son of Faqeer (the predecessor-in-interest of the appellants).

5. On the other hand, Muhammad Noorullah Qureshi and Syed Azad Hussain Shah, Advocates, the learned counsel for the respondents, while controverting the arguments advanced by the learned counsel for the appellants, have argued that the judgment and decree of the High Court are perfect and legal, therefore, no interference is required by this Court. He argued that the High Court has dilated upon all the controversial points and decided the same in a comprehensive manner. He further argued that only an application for withdrawal of suit was made and no order was passed on this application when she moved another application for withdrawal of that application as no order was passed on the application for withdrawal of the suit, therefore, both the Courts below were not justified to turn down her application. No illegality has been committed by the High Court while accepting the second appeal. They further argued that the law referred to above by the learned counsel for the appellants in an unreported judgment of this Court has no nexus with the matter in hand as the matter in that appeal was quite different. In the referred case, the matter was regarding the amendment of the decree. That case had its own peculiar facts, therefore, that judgment is not applicable in the case in hand. They lastly argued that it is a celebrated principle of law that the Court should always prefer to decide the cases on merit instead of throw the same away on technicalities.

6. We have heard the arguments of both, the learned counsel for the parties and also perused the record along with the judgment and decree rendered by the High Court. From the record it depicts that on 1-1-1974, Mst. Minni and Resham Jan filed a suit for declaration in the Court of Sub-Judge Muzaffarabad with the prayer for joint possession claiming therein that the aforesaid land was in the ownership of one Ghareeba who died during the pre-partition period leaving behind a son (Bahadar) and a daughter (Mst. Kunni), and the plaintiffs in their capacity as daughters of Kunni as well as Ahmed Ali are entitled to 19/36 shares in the land.

7. During the pendency of the suit, Mst. Minni, one of the plaintiffs, filed an application for withdrawal of the suit to her extent on 17-6-1975 and also got recorded her statement in the Court in that regard. However, an order was yet to be passed on that application when on 5-10-1975, Mst. Minni filed another application that the aforesaid application dated 17-6-1975 for the withdrawal from the suit to her extent had been got filed by practicing fraud on her, therefore, the same may be allowed to be withdrawn. The plaintiff-respondent claimed in the subsequent application that a compromise was effected with her in the terms that she will be paid a sum of Rs.3,000/- out of the Court but the said amount was not paid to her, that is why she moved an application for withdrawal of application which she had filed for the withdrawal of the suit to her extent. Three issues were framed by the trial Court on the subsequent application dated 5-10-1975. After deciding all the issues against Mst. Minni, the suit was dismissed by the Additional Sub-Judge, Muzaffarabad vide judgment and decree dated 13-12-1980 on account of withdrawal. Against the aforesaid judgment and decree the Additional Sub-Judge, Mst. Minni, filed an a before the District Judge which also met the same fate vide judgment and decree dated 20-5-1984.

8. In the second round of litigation, Mst. Minni, plaintiff-respondent, filed another declaratory suit in the Court of Civil Judge, Muzaffarabad on 11-7-1984 alleging therein that the withdrawal application dated 16-6-1975 filed in the case titled Mst. Minni and another v. Mirzaman and others is based on fraud which is inoperative on the rights of the plaintiff-respondent. The defendants-appellants filed written statement on 28-5-1985. The trial Court framed the following issues:

Later on, the defendants-appellants moved an application on 16-2-1995 for dismissal of suit under order XXII, rule 4 of C.P.C. The trial Court after hearing the learned counsel for the parties dismissed the suit on 14-5-1995 on the ground of estoppel and under Order XXII, rule 1 of C.P.C. Against the aforesaid judgment and decree of the trial Court, the plaintiff-respondent filed an appeal before the Additional District Judge, Muzaffarabad which met the same fate vide judgment and decree dated 31-1-2000. Against the said judgment and decree of Additional District Judge, Muzaffarabad, the plaintiff-respondent filed a second appeal before the High Court. The High Court vide judgment and decree dated 27-4-2004 concluded as under:

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13. In the circumstances of the case, judgments and decrees passed by the Courts below are hereby set aside. The appellant is allowed to withdraw the application filed for withdrawal of suit and the case is remanded to the trial Court with the direction to proceed in the case in accordance with law and then decide the matter between the parties. The appeal is accepted with costs."

9. The High Court while passing the impugned judgment has relied upon a number of pronouncements from Pakistan and Indian jurisdiction. It is settled principle of law that mere filing of application for seeking permission to withdraw the application for withdrawal of suit does not bar a party to withdraw the same, if no order is passed by the Court on that application. in this regard reliance can be placed in a case titled Zahro v. Additional District Judge, D.G. Khan [2005 CLC 1101] wherein it has been observed as under:

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9. The word admission used in rule 6 of Order XII, C.P.C. means an "admission made in the pleading of the parties or otherwise". Then the admission qualifying for grant of judgment or decree has to be cleared unambiguous, unqualified and unequivocal. In the case in hand there is no admission made by the respondent admitted the claim of petitioner in the application alleged to have been filed by her. She made a statement that her grievance has been redressed and she wanted to withdraw her suit. This statement is not an admission under rule 6 of Order XII, C.P.C. It is a case covered by rule 1 of Order XXIII, C.P.C. i.e. withdrawal of suit or abandonment of claim. As per rule 1, 'At any time after institution of suit plaintiff may withdraw his suit or abandon his claim, against any or all defendants'. This prayer can be made in writing or orally or by recording statement with the Court. The withdrawal proceedings is completed the moment an order to that effect is recorded. Prior to that, it is only a request from the plaintiff, meaning thereby that when the withdrawal application is pending and not allowed by the Court, it is not complete proceedings and plaintiff can withdraw the same by making a written application or by making or by recording statement in the Court. Here in this case request for withdrawal was made on 7-5-2003 in writing and by recording statement. Before any order was passed on the application, respondent No.3 again on 7-5-2003 same day appeared before the Court with the request that she wanted to withdraw her written application for withdrawal the suit. She also got recorded her statement as to why, she was withdrawing her written request to withdraw the suit, which rightly allowed by the Court. Even otherwise the females of the families are generally denied the right of inheritance from the ancestral property. Same is the situation with the present case. Respondent No.3 was denied her right by her brother and father. She filed the suit seeking declaration of her title. Pending this suit the petitioner and other misled the respondent on false promise and got filed application through a defendant and got recorded her statement when she contacted her original counsel, who discussing the mischief and fraud of the petitioner produced respondent No.3 before the trial Court and got her statement recorded vide which she requested to withdraw the suit, which was rightly allowed by the trial Court." Similarly we are fortified in our view titled Yeshwant Govardhan v. Totaram Avasu and others [AIR 1958 BOMBAY 28] , it has been observed as under:

"It is open to a plaintiff to withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by an order of the Court."

10. We agree with the proposition of law enunciated in the referred judgments but the fact remains that in the instant case the application for withdrawal of suit was filed. by the plaintiff-respondents on 17-6-1975 in the case titled Mst. Minni and another v. Mirzaman and others and in this regard she also got recorded her statement, but no order was passed on that application. When she moved the subsequent application on 5-10-1975 for withdrawal of the earlier application and the trial Court while rejecting the application filed on 5-10-975 dismissed the suit to the extent of Mst. Minni on 13-12-1980. Against this order Mst. Minni filed an appeal before the District Judge, which met the same fate vide judgment and decree dated 20-5-1984. In other words the controversy resolved by the trial Court rightly or wrongly has come to an end. Now the question whether the proceedings with regard to withdrawal application in the case titled Mst. Minni and another v. Mirzaman and others, finally concluded by the Court of competent jurisdiction which have attained finality can be reopened in the subsequent suit or the same shall operate as res judicata. For proper appreciation, section 11, C.P.C. is reproduced as under:

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11. Res Judicata.

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I

The Expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II

For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III

The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV

Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V

Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI

Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating." A bare reading of the above section reveals that according to this statutory provision, no Court is competent to try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title in Court competent to try such subsequent suit or the suit in which such issue been subsequently raised, and has been heard and finally decided by such Court. The words 'suit' or 'issue' are very important. This statutory provision conveys that if any suit directly and substantially in issue in the former suit when finally disposed of by a Court of competent jurisdiction then on the same issue or cause, subsequent suit does not lie. As such the parties are barred to raise the issue in the subsequent suit which has been finally decided by the Court of competent jurisdiction in a former suit. In the instant case the issue with regard to the withdrawal application was directly and substantially arose in the former suit titled Mst. Minni and another v. Mirzaman and others and the Court after hearing the parties finally decided the issue against the plaintiff-respondent and dismissed the suit to her extent. Against the decision of the trial Court, the plaintiff-respondent filed an appeal before The Additional District Judge which was dismissed. No further appeal was lodged against the said order of the Additional District Judge. In other words the proceedings with regard to the withdrawal application attained finality. As held earlier that any applicant who makes an application for withdrawal of the suit can withdraw the same if no order is passed on that application but in the instant case when the trial Court rightly or wrongly decided the issue with regard to withdrawal application against the plaintiff-respondents which attained the finality and proceedings ended there. No fresh proceedings with regard to the same matter can be initiated. If in this Court the instant proceedings might have been in continuation of that application then the Court was competent to see the legality or illegality committed by the trial Court and the District Judge. The plaintiff-respondent in the subsequent suit has challenged the proceedings which had already been concluded and decided by the Court of competent jurisdiction, therefore, she was estopped to challenge the same on the principle of res judicata. In this regard reliance can be placed on case titled Sakhiullah v. Habibullah [2011 SCR 133], in which has been held as under:

" . The rule of res judicata is based on the principle that there must be some end to the litigation and the parties are not to be vexed twice for the same cause. The question of cause of action is important for determining the question of res judicata. If the matter involved is based on different cause of action, there will be no res judicata and if the matter is finally adjudicated, fresh suit on the same cause of action constitutes res judicata. ...." At page 143 of the above said case, it has been observed as under:

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10. To constitute res judicata it is essential that a matter must be directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. ....." Again at page 144 it has been held as under:

" . No doubt, under Order XVII, rule 3 of the Code, if a party fails to produce the evidence if ordered by the Court, then the Court may dismiss the suit on merits and the same may be treated as finally decided, in that case the rule of res judicata is attracted. In the cases where the parties have not put their appearance, the written statements were not filed and issues were not framed, the dismissal on technical ground cannot be termed as 'finally decided' and will not constitute res judicata. Whether a case is finally decided or not can be judged from the fact that if detailed order on merits has been recorded, then it will be treated as finally decided and will constitute res judicata but if the suit is summarily dismissed for non-compliance of Court order on technical ground without touching the merits, it is not 'case finally decided' and will not constitute res judicata."

11. Another point which prevailed with the trial Court and the District Judge, is with regard to Order XXII, rule 1 of C.P.C. Under this provision if the right to sue survives then the suit shall not be abated on the death of a party. The available record shows that in the earlier proceedings on an application for bringing on record the legal heirs of the defendant-appellants was made which was turned down by the trial Court and upheld by the District Judge, no further appeal was lodged by the plaintiff-respondents and the proceedings have attained finality. In other words the suit when the legal representatives have not been brought on the record has been abated to the extent of defendant-appellants as right to sue is not survived, therefore, the High Court has wrongly while accepting appeal reopened the proceedings which have already been concluded in the former suit titled Mst. Minni and another v. Mirzaman and others. For the above stated reasons while accepting this appeal the judgment and decree passed by the High Court on 27-4-2004 is set aside and the order passed by Civil Judge dated 14-5-1995 and that of Additional District Judge Muzaffarabad dated 31-1-2000 is restored. No order as to costs. SAK/54/SC(AJ&K) Appeal accepted.