2018 PLP 4 (YLRN)

MUDASSIR KHALID ABBASI, J.--Through this civil revision, petitioners have assailed the judgment and decree dated 21.12.2013, passed by learned Civil Judge, Jampur, judgment and decree dated 29.03.2014, passed by learned Addl. District Judge, Jampur, District Rajanpur.

2. Brief facts giving rise to the filing of instant civil revision petition are that Mst. Anjum Shahbaz respondent No.1 filed a suit for partition of house measuring 4-1/2 marlas described in the head note of the plaint with the contention that she was owner of 2/3 share in the said house through registered sale deed No.851/1 dated 23.08.2005 and remained in possession of the said house after her marriage as she was given the said share in dower. It was also contended that earlier she filed a suit for partition, but the same was withdrawn. Learned civil judge vide judgment and decree dated 21.12.2013, passed the pre-liminary decree and directed Naib Tehsildar, Janmpur to visit the spot and submit report as to whether the suit land is partiable.

3. Petitioners assailed the said preliminary decree through an appeal before learned Addl. District Judge, Jampur, District Rajanpur. Said appeal was dismissed vide judgment and decree dated 29.03.2014.

4. Aggrieved by both the judgments and decrees, petitioners have filed the instant revision petition.

5. It is argued by learned counsel for the petitioners that both the judgments and decrees are against law and facts, based on mis-reading and non-reading of facts of the case in its true perspective; that both the courts below without application of judicial mind proceeded in a mechanical way; that the suit was barred by law, as earlier suit on the same subject matter was un-conditionally withdrawn and permission to file the fresh suit was not obtained; that the respondent No.1 has taken different stance in her plaint and her evidence. Reliance is placed on PLD 2008 SC 146 and 1996 SCMR

105. It has been prayed that by accepting the instant civil revision, both the judgments and decrees of courts below be set-aside and the suit be dismissed.

6. Conversely learned counsel representing the respondent has vehemently opposed the contentions raised by learned counsel for the petitioners and submitted that both the courts below while appreciating the facts available on record have applied judicial mind and arrived at a correct conclusion; that in view of concurrent findings of both the courts below, it was established that the pre-liminary decree was rightly passed and the appeal was also dismissed in accordance with law. It is further argued that when fresh cause of action has accrued, filing of second suit on the same subject matter was not barred by law. He prayed for dismissal of instant civil revision petition. 7 Arguments heard. Record perused.

8. I have given my anxious thought to the arguments advanced by learned counsel for the parties and have perused the record.

9. Admittedly, a registered gift deed No.851/I dated 23.08.2005, Exh. P.1, was executed in favour of plaintiff/respondent No.1 whereby land measuring 3 marlas was transferred in her name in lieu of dower, whereas the stance taken by the revision petitioners/defendants in written statement is that the plaintiff/respondent No.1 had earlier filed a suit for possession through partition on 22.10.2009 and after six months compromise was effected between the parties and respondent No.1 was compensated through payment of Rs.100,000/-. Consequently she withdrew the suit filed against the petitioners/ defendants.

10. Primary stance taken by the learned counsel for the petitioners is that in terms of Order XXIII, Rule 1, C.P.C., withdrawal of earlier suit unconditionally, without seeking permission to file a fresh suit on the same subject matter was not maintainable.

11. This aspect of the case has been dealt by the trial as well as the appellate court on the premises that it was a simple withdrawal on the statement made by the counsel for the plaintiff/respondent on 08.04.2010, whereas cause of action in a suit for partition is always recurring, therefore, fresh suit was not barred. This cannot be ruled out in the peculiar facts and circumstances of this case, because it is an admitted fact that respondent No.1 had left the petitioner because of strained matrimonial relations and during that course a similar suit was filed by the plaintiff/respondent No.1 in the year 2010. It has also been narrated/admitted by the petitioner and respondent themselves in their pleadings that a compromise had taken place between the parties upon which respondent No.1 had withdrawn the suit.

12. In "Muhammad Chuttal v. Atta Muhammad through LRs", 2007 SCMR 373 it has been held that where cause of action was either distinct or recurring, then dismissal of the first suit would not effect the subsequent suit. It has been further held that recurring cause of action is a mixed question of law and facts is to be decided on the basis of evidence of the parties. In 2004 YLR 2737 Lahore case titled "Muhammad Ibrahim v. Muhammad Younas" this Court has observed that in a suit for partition, withdrawal of suit without seeking permission to file fresh suit, no absolute right could be held in favour of plaintiff withdrawing a suit under Order 39, Rule 1 CPC. Cause of action in such kind of suits was always recurring one and fresh suit was not barred.

13. Another very important distinction can be drawn in this particular case is that the property in dispute had already been gifted through a registered deed in favour of respondent No.1 in lieu of her dower. Therefore, element of recurring cause of action is very much plausible and applicable to the case in hand particularly where at one point of time the relations were cordial and subsequently became strained between the spouses.

14. So far as plea taken by the petitioner/defendant that plaintiff/ respondent No.1 was compensated through payment of Rs.100,000/- on account of payment of dower, seems to be baseless and highly improbable, as the revision petitioners/defendants during the course of evidence/trial had failed to establish such assertion.

15. Another argument vehemently urged by the learned counsel for the petitioner/defendant is that in the pleadings dimension of the suit property has been narrated as 4-1/2 marlas, whereas according to the report of the local commission, it is less than three marlas. It is to be noted that the learned trial court has passed a preliminary decree and appointed a local commission whereas local commission submitted his report subsequent to the judgment passed by the trial court and dimensions of the suit property can be taken into consideration by the trial court while passing the final decree.

16. Stance taken by the petitioner/defendant before the courts. below was that he has spent an amount of Rs.400,000/- on the construction made over the suit property, whereas the petitioner/ defendant could not bring forward any convincing/material evidence in order to substantiate his claim except his own statement to this effect, whereas the other witness produced by the petitioner/ defendant did not mention anything about this fact. For what has been narrated above, I am not persuaded to interfere in the concurrent findings of the courts below. This petition does not succeed and is dismissed. No order as to cost. MQ/A-73/L Revision dismissed.