1990 PLP 1702 (MLD)

Shafat, K.M. Nadeem, A.A.‑G., Inayat Ali and Abdullah Khan for Defendants. This is an application under Order VII, Rule 11, C.P.C. filed by the Defendants parying that the plaint be rejected thereunder, as no cause of action has accrued to the plaintiffs. It is explained in the affidavit accompanying the application that this suit has been filed by the plaintiffs with regard to a land which was basically allotted to Artisans and Craftsmen Rehabilitation Committee in the year 1949 and a portion of the same measuring 1,925 sq. yds was allotted to Khawaja Moeenuddin in 1951 by the said Committee. The plaintiffs have filed the suit claiming to be the members of the Artisans and Craftsmen Rehabilitation Society and the documents produced by them for establishing the existence of the said society pertain to Artisans & Craftsmen Co‑operative Society Private Ltd. registered in 1980. As such the plaintiffs have no cause of action to file this suit. During the course of arguments it was additionally contended by the Defendants counsel that prior to this, Suit No. 1613/1988 was filed by the plaintiffs in the Court of IInd Senior Civil Judge (East), Karachi as disclosed in Para 6 of the plaint, in respect of the same subject matter, which the plaintiffs stated that they would withdraw, but there was nothing to show that the said suit was actually withdrawn and therefore, the present suit could not have been filed. In reply the plaintiffs counsel submitted the true copies of an application under Order 23 Rule 1 C.P.C. and the order of withdrawal dated 16‑1‑1990 alongwith one application under S.151, C.P.C. The application and the order read as under:‑ "APPLICATION U/O 23 RULE 1 C.P.C. It is prayed on behalf of the plaintiff abovenamed that this Hon'ble Court may be pleased to allow the plaintiffs to withdraw the above suit as the plaintiffs have already filed fresh suit in the High Court of Sindh having pecuniary jurisdiction in the matter. Sd/- Advocate for plaintiffs." "ORDER Heard. The defendants have not yet filed their Written Statement in the suit. Today also none on their behalf is in attendance. This application is for simple withdrawal of suit which is hereby allowed. Suit in the circumstances stands dismissed as withdrawn. Sd/ 16‑1‑1990 (Syed Gul Muneer Shah) land Senior Civil Judge/ASJ & R.C. Karachi East." The application asks for a post facto permission for filing of a fresh suit after such fresh suit is already filed. This is something quite alien to the provisions of Order XXITI, rule, (2), C.P.C. In the case of Golam Kibria v. Promathal Bhusan Dev, reported in 163 Indian Cases page 367, it was held that a Court has the jurisdiction to permit withdrawal of a suit only while the suit was pending before it, that is, at any time before it passes a decree, as the language of Order XXIII rule 1 (2) (a) of the Code of Civil Procedure clearly implies that. Not only this, but in my opinion, the language of the above provision also implies that the sanction for filing fresh suit is to be obtained not only during the pendency of the suit, but also before the fresh suit is instituted. It is quite clear that when the suit E was instituted (on 14‑6‑1989), no such sanction was available. Hence the institution of the suit was defective. It was only when an application under Order VII rule 11, C.P.C. was filed in this suit that are application was made to circumvent the bar imposed by the above provisions. 1t is, therefore, mala fide as well. Moreover, the order of the learned Senior Civil Juge only allows simple withdrawal and does not grant permission for filing of the fresh suit and this suit C is, therefore, barred under sub‑rule (3) of Rule 1 of Order XXIII C.P.C., as the present suit is in respect of the same subject matter and no permission to file fresh suit was obtained. Since the plaint is liable to be rejected on this ground alone, I do not propose to deal with the ground of absence of cause of action raised in the application initially. Hence I reject the plaint under Order V1I Rule 11 C.P.C. M.B.A./A‑822/K Plaint rejected.