P L D 2026 Supreme Court 177 (PLP)

SHAHID WAHEED, J.

This appeal is by the unsuccessful plaintiffs and arises from the judgment dated 7th of February, 2019, in which the High Court, while declining to revise the concurrent findings returned by its two subordinate courts, maintained the dismissal of the appellants declaratory suit. The correctness of that judgment is challenged in this appeal.

2. The rationale which prevailed with the High Court to non-suit the appellants was that they were attempting to rely on a foundation that had already been undermined and lost. This situation can aptly be illustrated by a metaphor, building castles on a sandbar sunk , suggesting an endeavour that is precarious and ultimately doomed to failure. The questions that arise for decision in this case are of some importance and will come to the fore once the facts are related. To fully understand the pressing nature of the issue(s), we will first elaborate on the circumstances surrounding the metaphorical sandbar sunk , and after that, those that constituted the cause which led the appellants to find themselves in the precarious position of attempting to build castles upon it.

3. We will be brief in narrating the facts, lest we digress from the questions that fall for determination in this appeal. The dispute in this case relates to 197 kanals and 11 marlas of land situated within the revenue estate of Soin Hafiz, Tehsil Gujjar Khan (hereinafter, the disputed land ). In 1984, respondents Nos. 1 to 6 instituted a suit for joint possession of a 2/3 share in the disputed land on the ground of inheritance. This suit will hereinafter be referred to as the first suit . It is unnecessary for the present purposes to state the facts relating to the original ownership of the disputed land or the basis on which respondents Nos. 1 to 6 claimed a share therein. However, it would suffice to note that the appellants, along with respondents Nos. 7 and 8, were defendants in the suit and contested the same. On divergent pleadings, evidence was led by both sides. Taking into account the evidence presented, the trial court, by its judgment and decree dated 23rd of December, 1986 (Ex.P.5), dismissed the suit. The first appeal thereagainst was preferred under section 96 of the C.P.C. before the Additional District Judge, Rawalpindi. On 12th of January, 1991 (Ex.P.4), the appeal was allowed, and the case was remanded to the trial court for a fresh decision. Upon remand, the trial court again dismissed the suit through judgment dated 26th of February, 1998 (Ex.P.1). This judgment and decree were subsequently challenged in an appeal under section 96, C.P.C. A perusal of documents, that is, Ex.D.1 to Ex.D.4 showed that not only the appeal but also the suit was allowed to be withdrawn with permission to institute a fresh suit. Be it noted here that the appellants, if they wished, could challenge that order of withdrawal by proper procedure, but they opted not to do so, and, as such, contributed to making it final. This puts an end to the first suit brought by respondents Nos. 1 to 6.

4. This appeal arises from the suit which ensued the withdrawal of the first suit. This suit hereinafter shall be referred to as the second suit . In the second suit, the appellants were the plaintiffs, while respondents Nos. 1 to 6 were the defendants. The material facts stated in the plaint of the second suit clearly suggested that the appellants, by it, sought a decree declaring them to be the owners of the disputed land. They based their claim on a solitary document, and that was a judgment and decree dated 26th of February, 1998 (Ex.P.1) under which the first suit was dismissed. They maintained that with the dismissal of the first suit, their title to the disputed land stood crystallised. Respondents Nos. 1 to 6 traversed the appellants claim, asserting that, after the withdrawal of the first suit, the judgment and decree dated 26th of February, 1998 (Ex.P.1) had no value and, therefore, the suit was liable to be dismissed. After that, the second suit went through different stages of the trial. All the courts, having considered the evidence presented, provisions of Rule 1 of Order XXIII, C.P.C., and the precedents cited, held that after the withdrawal of the first suit, the judgment and decree (Ex.P.1) had no existence, and, as such, it could not be made a ground by the appellants for claiming title to the disputed land. The second suit was thus dismissed.

5. Now the questions that fall for determination come out. The first is whether the judgment and decree dated 26th of February, 1998 (Ex.P.1), given the facts and circumstances of the case, still holds the field, or is it a sandbar sunk ? The second question is whether the appellants, based solely on Ex.P.1, could build castles on it and claim title to the disputed land?

6. Syed Qalb-i-Hassan, ASC, relying upon the precedent established by this Court in the case of Haji Muhammad Boota,1 contended on behalf of the appellants that the orders granting permission to withdraw the first suit were not a decree because those orders failed to address the substance of the first suit meaningfully and did not furnish any reason for setting aside the decree dated 26th of February, 1998 (Ex.P.1), which had been passed by a Court of competent jurisdiction after recording evidence. As such, the withdrawal of the first suit would not have the effect of doing away with the judgment and decree dated 26th of February, 1998, passed against respondents Nos. 1 to

6. Consequently, the appellants could have based their claim on it and legitimately sought a decree of declaration of title to the disputed land.

7. In light of the pivotal role that the decision in the case of Haji Muhammad Boota plays in supporting the appellants arguments, it is necessary for us to closely scrutinise both the facts and the legal rationale presented in that decision. Before delving into this analysis, we wish to reiterate two important principles regarding judicial interpretation. Firstly, it is crucial to recognise that every judicial opinion must be understood in relation to the specific facts established or assumed during the proceedings. The broader statements or legal principles articulated within a judgment are not intended to serve as comprehensive expositions of the law. Instead, they are intricately tied to the unique circumstances of the case at hand, and these particular facts thus qualify their applicability. Secondly, it is essential to remember that a judicial case serves as authority only for the specific issues it resolves. The precedential value of any ruling is intrinsically linked to the context and particulars of the case, meaning that judicial decisions should not be generalised beyond their immediate implications.2 With these observations in mind, we will now examine the Haji Muhammad Boota case in detail to ensure a thorough understanding of its impact on the present appeal.

8. In the case of Haji Muhammad Boota, a dispute emerged over a parcel of land belonging to an individual who had relocated to Bombay in the 1930s, whose whereabouts had since become uncertain. During his prolonged absence, two separate claimants surfaced, each asserting ownership of the same piece of land. The first claimant grounded his claim on a sale deed, while the second based his claim on a mutation recorded in the revenue records. The first claimant commenced legal proceedings seeking judicial recognition of his title to the land and invalidation of the mutation claimed by the second party. The trial court scrutinised both the sale deed and the mutation and ultimately found them invalid. Consequently, the court referred the matter to the Collector to explore the possibility of escheatment. These findings were upheld through various appellate stages, including the High Court. Eventually, the first claimant approached the Supreme Court, seeking leave to appeal, which was granted. During the course of the appeal, he undertook a strategic move by initiating proceedings before the revenue authorities, intentionally omitting to disclose his ongoing litigation. By requesting a reversal of the mutation and successfully obtaining his name substituted in the revenue records, he strengthened his standing. After securing his name in the records, he asked the Supreme Court to allow him to withdraw his suit, arguing that since he had already gained relief from the revenue authorities, his suit was now rendered moot. Moreover, he sought permission to file a fresh suit in the event anyone attempted to disrupt his possession of the land. The Supreme Court permitted the withdrawal of the suit, deeming the appeal as infructuous. Following this, the Supreme Court revisited the withdrawal order in the exercise of its suo motu review jurisdiction. Upon re-examination, the review proceedings were ultimately dropped. After that, the second claimant initiated his own litigation, seeking a declaration affirming his title to the land and the cancellation of the first claimant s name from the revenue records. The first claimant contested the second suit, invoking the principle of res judicata, contending that the civil court had previously dismissed the second claimant s claim in the initial round. Consequently, the plaint in the second suit was rejected, and this decision was upheld through to the High Court. The matter again ascended to the Supreme Court. Both claimants sought leave to appeal. The first claimant had taken exception to certain observations about his claim, while the second claimant had challenged the entire judgment of the High Court. The Supreme Court dismissed both petitions and refused leave to appeal, observing that both claimants failed to prove their title, and directed the Provincial Government to take over the land and utilise it for charitable purposes. Interestingly, during this deliberation, a divergence of opinion arose among the three learned members of the Bench regarding the validity of the order allowing the first claimant to withdraw his suit. Two of the learned members observed that the order permitting the withdrawal of the suit did not address or invalidate the earlier findings that had referred the matter to the Collector. Thus, they held that the first claimant s withdrawal could not nullify the judicial determinations made in the previous court proceedings. Conversely, the third learned member of the Bench, in a separate note, recorded that questioning the propriety of the withdrawal order was inappropriate, as it concerned a past and closed issue. He concluded that the withdrawal approved by the Appellate Court effectively nullified the prior judgments and decrees unless explicitly stated otherwise. This run-through of the judgment makes it clear that the majority of the Bench first examined the legitimacy of the withdrawal order and, when they found it was not proper, held that previous judgments had not been erased or rendered void. The circumstances of this case starkly differ from those presented by the appellants. It is noteworthy that in Haji Muhammad Boota, the Supreme Court ordered the withdrawal of the suit, and later it also initiated a review of the withdrawal and its legal implications. In contrast, in the appellants case, the First Appellate Court had issued a withdrawal order, which the appellants had not challenged before any forum at the proper time. Moreover, the Supreme Court in Haji Muhammad Boota had revisited the order allowing the withdrawal due to indications that the permission was predicated on misrepresentation, suggesting that the parties involved were attempting to fraudulently seize land that was not rightfully theirs, as it had been escheated to the State. Such red flags are absent in the appellants situation, making any comparison to the Haji Muhammad Boota precedent flawed and its application potentially misguided. That apart, Haji Muhammad Boota is a leave-refusing order, and therefore, it is prudent to clarify the legal nuances of Order XXIII, Rule I, C.P.C., to address the matters at hand in this appeal.

9. Before exploring the legal implications, it is beneficial to present the relevant excerpt from Order XXIII, Rule 1, C.P.C. for clarity and context. This rule serves as a foundational guideline in legal proceedings, and understanding it will set the stage for the discussion that follows.

1. Withdrawal of suit or abandonment of part of claim. (1) At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied-- (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.

10. The law governing the withdrawal of suits, as laid out in Rule 1 of Order XXIII, C.P.C., encompasses two fundamental provisions: (a) a plaintiff has the inherent right to abandon a suit or any portion of his claim without seeking prior permission from the Court. However, this right comes with the caveat that once a suit or a part of it is abandoned, the plaintiff cannot initiate a fresh suit based on the same cause of action. It is crucial to note that the plaintiff cannot withdraw a suit while simultaneously reserving the right to file a fresh suit on the same grounds. Furthermore, the defendant cannot compel the plaintiff to continue with the proceedings. (b) In specific situations outlined in Sub-rule (2), the Court may grant the plaintiff permission to withdraw from a suit, thereby allowing the opportunity to initiate a fresh suit on the same cause of action. Such permission, when granted by the Court, serves to safeguard the plaintiff from the restrictive effects of Order II Rule 2 and Section 11 of the C.P.C.3

11. The stipulations found in Order XXIII Rule 1, C.P.C., represent a noteworthy exception to the established common law principle of non-suit. Consequently, an application made by a plaintiff under Sub-rule (2) cannot be equated with the unilateral right granted under Sub-rule (1). The latter offers a straightforward path for withdrawal. At the same time, the former necessitates a formal request for a special concession from the Court, contingent upon demonstrating compelling circumstances that merit such a concession. While the grant of leave as envisaged in Sub-rule (2) lies within the discretion of the Court, this discretion must be exercised judiciously and with careful consideration. The legislative intent governing this discretion is clearly articulated in Sub-rule (2), which outlines two distinct scenarios: one in which the Court is convinced that a suit would inevitably fail due to some procedural defect, and the other where the Court recognizes sufficient grounds that warrant the plaintiff s ability to initiate a fresh suit concerning either the entirety of the subject matter or a portion of a claim. Clause (b) of Sub-rule (2) imposes a clear obligation on the Court to ascertain the adequacy of the grounds presented for permitting the plaintiff to commence a new suit regarding the same claim or part of a claim centred on the identical cause of action. In fulfilling this duty, the Court is mandated by the Code to evaluate all pertinent factors, including the implications of allowing a party to re-engage in litigation based on the same underlying issues. This scrutiny becomes increasingly vital when the application is filed at the appellate or second appellate stage. If leave is granted in such circumstances, it could empower the unsuccessful plaintiff to evade any unfavourable decrees previously rendered against them, essentially allowing a fresh examination of the dispute from a clean slate. Furthermore, this process might disadvantage the contesting defendant, who could lose the benefits of adjudications by the courts below. Additionally, permitting the withdrawal of a suit with the option to file anew could annul rights that have been vested in the defendant or even third parties. Thus, appellate or second appellate courts must approach these matters with a discerning mindset, ensuring stringent adherence to the stipulations outlined in Order XXIII Rule 1(2) of the C.P.C. when exercising their discretionary powers to authorise the withdrawal of a suit with permission to file a new suit on the same cause of action.4 An equally significant consideration is the potential for wasteful expenditure of public time through the withdrawal of suits at the appellate stage, particularly in light of the pressing backlog of cases in lower courts and the consequential delays in their resolution. The efficient functioning of the judicial system, especially during periods of record case accumulation, underscores the need for careful deliberation in such matters.

12. The implications of Order XXIII, Rule 1 C.P.C., as detailed above, have led us to conclude that when a suit is withdrawn with permission to initiate a fresh suit, that permission effectively leaves the parties in the same legal position as if the original suit had never been filed.5 In light of these circumstances, we find it unnecessary to scrutinise the legitimacy of the orders allowing withdrawal of the suit with permission to file a fresh suit (Ex.P.3, Ex.D.2, and Ex.D.3), as they remain unchallenged before any legal forum to date and therefore hold a final status. Additionally, we cannot permit the appellants to contest the validity of these orders at this stage, as they did not utilise the direct attack procedures available to them.6 This is important because the principle of law is that once a competent court grants leave to withdraw a civil suit with the option to file a new one, the court hearing a subsequent case cannot assess whether the earlier permission was appropriate.7 The logic behind this principle is twofold: firstly, that an order made by a court having jurisdiction stands and binding unless it is set aside on appeal/revision or lawfully quashed; secondly, such an order cannot be attacked collaterally, meaning it cannot be questioned in proceedings that are not specifically intended to reverse, modify, or nullify the order or judgment.8 Consequently, this legal position dictates that the judgment and decree passed on 26th of February, 1998 (Ex.P.1) is rendered ineffective and constitutes a sandbar sunk ; thus, it can no longer serve as a foundation to build castles on it, or for any claims, titles, or legal rights that the appellants seek to establish. Aside from this judgment and decree, the appellants have not presented any other evidence or documentation to substantiate their claim to the disputed land. Hence, the courts below were justified in denying their request for a declaratory decree to establish title.

13. Before concluding this matter, we wish to express that we carefully considered the request made by the counsel for the appellants, who sought to have the case remitted to the trial court with a direction to allow for amendments to the plaint and to provide evidence of their title independent of the judgment dated 26th of February, 1998 (Ex.P.1). However, we were unable to agree to this request for two reasons. Firstly, as previously stated, the appellants based their claim solely on Ex.P.1 in their plaint. While it is true that the appellants suit is one for a declaration, and it will remain a suit for a declaration after the proposed amendments, the character of their claim would change significantly. It is a well-established principle of law that, under Order VI, Rule 17 of the C.P.C., amendments to the original plaint that alter the character of the claim are not permitted, even if the nature of the suit remains the same.9 Similarly, amendments to a written statement that change the entire complexion of the defence are also not allowed.10 Therefore, in light of this principle, the request to amend the plaint lacks merit. Secondly, the appellants have not provided a solid foundation or presented supplementary documents to demonstrate their ability to establish title without reliance on Ex.P.1. In the absence of such critical material, returning the matter to the trial court based solely on the unsubstantiated assertions of counsel would serve no practical purpose. Such an action would risk creating unnecessary litigation and would ultimately undermine the very essence of justice. Therefore, we must decline this request.

14. The appeal fails and is dismissed with costs throughout. MH/S-17/SC Appeal dismissed. 1 Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 Supreme Court 979). 2 Quinn v. Leathern (1901) AC 495, Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213) and Muhammad Shakeel and others v. Additional District Judge and others (PLD 2025 SC 572). 3 Balida Kamayya and others v. Paragada Papayya and another (AIR 1918 Mad. 1287). 4 Mrs. Afroz Shah and others v. Sabir Qureshi and others (PLD 2010 SC 913). 5 Behari Lal Pal v. Srimati Baran Mai Dasi (1894) ILR 17 All 53, Becharam Chowdhuri and others v. Purna Chandra Chatterji and others (AIR 1925 Cal. 845) and Baisnab Das Mohanta v. Nani Gopal Das and others (PLD 1963 Dacca 504). 6 Garland v. Consumers Gas Co. (2004) 1 SCR 629. 7 Raj Kumar Mahto v. Ram Khelawan Singh (AIR 1922 Pat. 44) and Haridey Nath Roy v. Ramchandra (AIR 1921 Cal. 34). 8 R v. Wilson (1983) 2 SCR 594 and Danyluk v. Ainsworth Technologies Inc. (2001) 2 SCR 460. 9 Alokeshi Banik v. Aftabuddin (PLD 1963 Dacca 87). 10 Syed Muhammad Ali and others v. Syed Dabir Ali and others (2016 SCMR 2164).