2002 PLP 632 (MLD)

Ustad Muhammad Iqbal for Petitioner. Muhammad Zafar Chaudhry for Respondents. Date of hearing: 27th September, 2001. On 5‑5‑1972 respondents Nos.1 to 4 filed a suit against the petitioner and Atta Muhammad (predecessor‑in‑interest of the respondents Nos.5 to 9). In the plaint it was stated that Atta was owner of suit land who agreed to sell the same to respondents Nos. 1 to 4 for a consideration of Rs.17,

000. He received a sum of Rs.4,000 as earnest and executed an agreement dated 21‑2‑1971 and delivered the possession to them. The balance was to be paid by 25‑3‑1971 and Atta was to get the mutation or sale‑deed attested in their favour. It was further stated that Atta Muhammad had entered into an agreement dated 28‑5‑1970 in favour of the petitioner for sale of same land in his favour subject to payment of price at the rate of Rs.2,500 per Killa, This agreement was w )e pertor by 15‑1‑1971, inasmuch as balance amount of consideration was to be paid by the petitioner to Atta Muhammad failing which the agreement was to stand cancelled; that balance amount was not paid and Atta Muhammad issued a notice to the petitioner on 23‑2‑1971 informing him that earnest has been forfeited. Thereafter the petitioner filed a suit for specific performance of agreement, dated 28‑5‑1970. In this suit respondents Nos. 1 to 4 were also impleaded as parties. The suit was fixed for 29‑5‑1972 for recording evidence of the parties. However, on 19‑4‑1972 the petitioner filed an application for withdrawing the suit. This application was taken up on 20‑4‑1972 and suit was dismissed as withdrawn. On the same date Atta Muhammad sold the land to the petitioner vide registered sale‑deed. The respondent Nos., 1 to 4 complained the although Atta Muhammad had admitted and acknowledged agreement in their favour in his written statement in the Court yet the petitioner and Atta Muhammad colluded and land was sold. With these averments a decree for specific performance was sought. Atta Muhammad filed a written statement wherein he proceeded to explain as to why agreement was executed in favour of the respondents Nos. 1 to 4 and at the same time made averments protecting the petitioner. In his written statement the petitioner took the position that there was prior agreement to sell in his favour and pursuant to that agreement sale‑deed was made in his favour. Issues were framed Evidence of the parties was recorded. Learned trial Court vide judgment and decrease, dated 12‑5‑1984 declined the specific performance but passed a decree for Rs.8,000 in favour of the petitioner and against Atta Muhammad. Against this judgment and decree first appeals were filed by the petitioner as well as L.Rs. of Atta Muhammad i.e. respondents Nos.5 to

9. Both these appeals were heard by a learned Additional District Judge, Kasur. Vide judgment and decree, dated 23‑11‑1985 the learned Additional District Judge while dismissing the appeals filed by respondents Nos.5 to 9, allowed the appeals filed by respondents Nos. 1 to 4 and decreed their suit for specific performance of the agreement.

2. Learned counsel for the petitioner contends that the learned Additional District Judge has taken absolutely wrong view of law while passing impugned judgment and decree and has acted without impugned judgment and decree and has acted without material irregularity in exercise of his jurisdiction while decreeing the suit of respondents Nos. 1 to 4 on the basis of the said wrong view of law. Learned counsel for the respondents Nos.1 to 4 on the other hand has tried to support the impugned judgment and decree.

3. I have gone through the copies of the record appended with this civil revision, with the assistance for the learned counsel for the parties. I have particularly examined the impugned judgment of the learned Additional District Judge. The facts emanating from the pleadings of the parties have already been stated above by me. Now the learned Additional District Judge has formed the opinion that the dismissal of the earlier suit filed by the petitioner for specific performance of agreement dated 28‑5‑1970, as withdrawn, would constitute res judicata and would debar the petitioner from defending the suit filed by respondents Nos.1 to 4 on the basis of earlier executed agreement, dated 28‑5‑1970 in his favour by Atta Muhammad.

4. I feel no hesitation at all in expressing agreement with the learned counsel for the petitioner that the learned Additional District Judge has, of course, taken absolutely erroneous view of the law. Withdrawal of a suit is governed by Order 23, rule 1, C.P.C. Now consequences of withdrawal of suit by a plaintiff under Order 23, rule 1(l), C.P.C. are stated in rule 1(3) of the said Order 23, C.P.C According to this provision of law where a plaintiff withdraws from a suit unconditionally then he shall be precluded from instituting a fresh suit in respect of subject‑matter of such a suit. It is the only penal consequence provided by law in the matter of unconditional withdrawal of a suit by the plaintiff. The withdrawal of a suit does not operate as res judicata because a Court decides nothing while permitting the plaintiff to withdraw a suit. There is no final decision by a Court in such‑like situation of a matter directly or substantially in issue. Now it was not petitioner who had filed the present suit rather he was defending the suit filed against him by respondents Nos. 1 to

4. There is no law which debars a defendant from raising and pressing a defence unless and until it was to be shown that matter had been finally decided in the earlier suit. The entire impugned judgment of the learned Additional District Judge proceeds on the said erroneous assumption. I, therefore, do find that the learned Additional District Judge has acted with material irregularity in exercise of his jurisdiction while passing the impugned judgment and decree proceedings on the said erroneous assumption The result is that he has failed to decide the appeal on its merits with reference to pending and on record. This civi' revision is 'accordingly allowed. The impugned judgment and decree dated 23‑11‑1985 of the learned Additional District Judge, Kasur, is set aside. The result would be that the first appeal filed by respondents Nos.1 to 4 shall be deemed to be pending in the Court of learned District Judge, Kasur, where the parties shall appear on 24‑10‑2001, learned District Judge shall requisition the record and thereafter either proceed himself or entrust the matter to some learned Additional District Judge, who shall then proceed to decide the appeal on its merits after considering the entire on record in accordance with law. No order as to costs. Q.M.H./H.A.K./G‑113/L Revision allowed.