P L D 2004 Peshawar 198 (PLP)

which was allowed and they were on payment of Rs.6,000 costs granted permission to withdraw the suit and file fresh suit vide judgment and decree dated 18-10-2001. Being not contented with the judgment and decree passed by the learned District Judge the petitioners have filed the revision petition in hand.

2. Mr. Qazi Muhammad Jamil, Advocate the learned counsel for the petitioners argued that the impugned judgment and decree passed by the learned District Judge Chitral were not based on proper appreciation of record available or the file. The petitioners who were defendants in the suit had in their written statement raised a specific issue that suit filed by the respondents/plaintiffs was hit by the principles of res judicata. Though the learned trial Court appreciated the said position, but the learned Appellate Court failed to appreciate the same. Had the learned Appellate Court appreciated that the suit filed by the respondents/plaintiffs was hit by the principles of res judicata it would have never granted permission to the respondents/plaintiffs to withdraw the suit and file a fresh suit.

3. On the other hand Mr. Isa Khan, Advocate the learned counsel for the respondents/plaintiffs argued that the respondents/plaintiffs in fact wanted to enforce two earlier compromises reached between the parties through the suit in hand and they sought amendment to the extent that the petitioners/defendants were taking away the water through installation of pipes to village Sama Gole which under the agreements and the decisions of, the Court they could not do. With the said amendment, the nature of the suit would not be changed. Moreover, the question of applicability of res judicata would become very clear.

4. I have heard the learned counsel for the parties and perused the record.

5. It is on record that parties had earlier rounds of litigations and they had entered into compromise on 18-6-1963, which was placed on record as D.W.1/3. Thereafter once again the same matter was agitated by the respondents/plaintiffs upon which the Additional Commissioner Chitral had appointed an Arbitrator who had given his Award dated 7-5-1982. The said Award Was accepted by the learned Additional Commissioner vide his order dated 27-1-1981 and the case was sent back to the Assistant Commissioner, Mastuj for decision, who decided the same vide his order dated 28-8-1982. The respondents filed appeal before learned Additional Commissioner which was dismissed on 28-7-1983 and the revision petition filed before the Home Secretary N.-W.F.P was also dismissed vide order dated 20-7-1985.

6. The learned District Judge was also to see as to whether the application filed by respondents/plaintiffs for withdrawal of the suit with permission to file fresh suit fulfilled the requirements of Order XXIII, rule 1, C.P.C or not.

7. Under Order XXIII, rule 1, C.P.C the Court has to satisfy:-- firstly, that the suit is liable to fail on account of some formal defect, secondly, there are otherwise sufficient ground to allow the permission; and thirdly, the permission is to be granted on such terms as Court would deem fit,

8. In the case in hand the respondents/plaintiffs failed to indicate as to what were the formal defects or what was the sufficient cause to grant permission to the respondents/plaintiffs to withdraw the suit and file fresh suit on the same cause of action. The material which was available on record to this effect was to be appreciated and the Appellate Court should have satisfied itself before granting the said application. The impugned order is completely silent on these points. Since the respondents/plaintiffs were allowed withdrawal of the suit and filing of fresh suit on the grounds which are not contemplated under Order XXIII, rule I, C.P.C, therefore, the learned Appellate Court has exercised jurisdiction vested in him irregularly.

9. The learned District Judge failed to appreciate that the learned trial Court was to head arguments on the two applications filed by the respondents. After hearing the arguments on the said application, he dismissed the suit filed by the respondents/plaintiffs. Neither the evidence available on record was appreciated nor the documents available on record were properly gone into. However, while holding that the case was hit by the principles of res judicata the suit filed by the respondents was dismissed. In this background of the matter heavy duty was cast on the Appellate Court/District Judge to see as to whether the respondents/plaintiffs could be allowed to amend their plaint or withdraw the suit and file fresh one more particularly when the question of applicability of res judicata had been raised by the petitioners/defendants in their written statement and the documents/previous decisions through evidence had also been exhibited on record.

10. I, therefore, allow the revision petition in hand, set aside the impugned judgment and decree passed by the learned District Judge and remit the case back to him with the direction to decide the same afresh as to whether the principles of res judicata would be applicable in the case in hand and whether the two applications filed by the respondents/plaintiffs could simultaneously proceed together and application filed under Order XXIII, rule I, C.P.C indicated any formal defect or any sufficient reasons on the basis of which respondents/plaintiffs could be allowed to withdraw the suit and file fresh suit on the same cause of action. Since the parties have been locked up in litigation for the last so many years, the learned District Judge Chitral is directed to decide the appeal within a period of four months. There shall be no order as to costs. Parties are directed to appear before the Court concerned on 27-4-2004. The office should remit the record of the case back immediately. H.B.T./149/P Case remanded.