P L D 1998 Lahore 441 (PLP)

This Intra-Court Appeal, under section 3 of Law Reforms Ordinance, 1972 by Rafaqat Ali/appellant/petitioner, seeks to call in question the order of learned Single Judge of this Court dated 28-8-1997/disposing of Writ Petition No.3695 of 1997 in following terms:- "Under clause 25 of the agreement executed between the parties in the event of any disagreement arising out of the contract, the matter shall first be referred to the Superintending Engineer for decision. The petitioner should, therefore, in the first instance, avail of the said alternate remedy by invoking the aforesaid provisions of clause 25 ibid. He is ready to tender additional Bank Guarantee for the amount of Rs.31,66,343 referred to above. He shall submit the said guarantee to respondent No.5 by the 15th September, 1997. Superintending Engineer Highway (respondent No.4) to whom the matter shall be referred for arbitration shall decide the case applying his independent mind notwithstanding that he belongs to Highway Department. If after final determination , the matter is decided against the petitioner, aforesaid bank guarantee of Rs.31,66,345 shall be encashable by the Department. The petitioner shall, however, continue to deposit the installments as agreed between the parties." Learned counsel for the appellant, at the outset, stated that he wanted to withdraw instant Intra-Court Appeal as well as the Writ Petition No.3695 of 1997 under sub-rule (1) of rule 1 of Order XXIII of C.P.C. He submitted that he wanted to withdraw the aforesaid causes unconditionally and without permission to file a fresh petition under Article 199 of the Constitution of Pakistan (1973); that he has already filed a suit for rendition of accounts before the Court of plenary jurisdiction. Hafiz Abdul Qayyum, the6learned counsel for the respondent strenuously- opposed this request and submitted that already writ petition had been dismissed vide impugned order and valuable rights have accrued to respondents. On the strength of above contention, it was submitted that the appellant was not entitled to withdraw 1.C.A. as well as the Constitution petition which has already been disposed of vide order dated 28-8-1997.

2. We have heard the learned counsel for parties at some length and attended to their competing contentions with care. We are afraid we are not inclined to agree with learned counsel for respondents. The relevant provisions is sub-rule (1) of Rule 1 of Order XXIII of C.P.C. This Order pertains to withdrawal and adjustment of the suit. This rule is subdivided in the four subrules. First sub-rule equips the plaintiff with a right to withdraw his suit/or abandon . his part of claim against all or any one of the defendants. This is his/their indefeasible right. No Court has a right to clog it and keep an unwilling plaintiff in arena of litigation. The plaintiff, if moves such an application to Court, the Court has no option but to accede to his request. This is, however, subject to two limitations. Firstly, that where a plaintiff withdraws his suit or abandons part of his claim under sub-rule (1), he is precluded from instituting any fresh suit in respect of the same subject-matter or same part of claim. This punitive effect is manifestly prescribed in sub-rule (3) of rule 1 of Order XXIII of C.P.C. This means that an order of unconditional withdrawal prohibits the plaintiff from re-agitating the same claim before the Court. Secondly, that the plaintiff is not entitled to withdraw the suit when a preliminary decree has been passed under which the rights have accrued to the other side or some rights have been decided in favour of other side. If any authority is needed reference be made to Sh. Muhammad Yousaf v. Zohran Bibi PLD 1973 Pesh. 186; Malik Mumtaz Ali v. Pakistan through Secretary, Refugees and Works, Government of Pakistan Rawalpindi PLD 1971 Lah. 395; Manager Muslim Commercial Bank, Chhattar Domel Branch, Muzaffarabad v. Maqsood Khan and 7 others PLD 1986 Azad J&K 215; Muhammad Rahim v. Bashir Khan and 3 others PLD 1984 Lah. 230; M/s. Hindustan Sanitary and Drainage Works v. Shabbir Burhani PLD 1992 Kar. 21 and Jasoonat Singh v. Darshan Singh AIR 1992 Delhi 80.

3. Applying the rules enunciated above, we are quite clear that the appellant has unconditional right to withdraw the appeal and Writ Petition No.3695 of 1997 disposed of by learned Single Judge on 28-8-1997. The perusal of impugned order passed by learned Single Judge clearly demonstrate that the parties were directed to first avail of the remedies provided in the contract agreed and signed by the parties. In view of the above, we are very clear that respondent had not acquired any vested right whatsoever under the impugned order of the learned Single Judge. This being the position we hold that the appellant had an unfettered right to withdraw I.C.A. as well writ petition and there is no legal impediment/prohibition in his way. We accordingly allow his request with a result that I.C.A. No. 62 of 1997 and Writ Petition No.3695 of 1997 stand disposed of as Unconditonally withdrawn without any permission to file fresh petition under Article 199 of the Constitution of Pakistan (1973). The questions as to what will be the effect of this unconditional withdrawal? Whether the suit for rendition of accounts filed by the appellant/petitioner will be barred under sub-rule (3) of rule 1 of Order XXIII of C.P.C.? are being left by us to be determined by learned Court of plenary jurisdiction before whom the suit for rendition of accounts. is pending adjudication. We, however, direct the learned trial Judge,. in view of nature of this litigation, to decide the suit within a period of three months positively within the terms of sub-rules (1), (2) and (3) of rule 1 of .Order XXIII of C.P.C. He shall send the progress report of this case to the Deputy. Registrar (Judl.), Lahore High Court, Bahawalpur Bench. A.A./R-55/L . . . .? Order accordingly.