P L D 1993 Supreme Court 6 (PLP)

AJMAL MIAN, J.‑‑‑This is an appeal, with the leave of this Court, against the judgment, dated 1‑11‑1990 passed by a learned Single Judge of the High Court of Sindh in Civil Revision No.274 of 1988 riled by the respondents, allowing the same by reversing two concurrent judgments in favour of the petitioner passed by the two Courts below in Suit No.2280 of 1985 and Civil Appeal No.188 of 1986.

2. Leave to appeal was granted to consider the contention of the learned counsel for the appellant, that the High Court should not have set aside the decisions of the lower Courts on the ground that the cost was not paid, keeping in view the ratio of the judgment of this Court in the case of Haji Abdul Rasheed Sowdagar v. S.M. Lalita Roy PLD 1959 SC 287.

3. The brief facts are that the appellant filed Suit No.3907 of 1980 inter alia for declaration against the respondent. He filed an application on 31st August, 19081 under Order XXIII, Rule 2, C.P.C. for the withdrawal of the above suit with the permission to file a fresh suit. The same was granted on the same day by the following order: "ORDER Permission is granted to withdraw the suit with permission to file fresh. Application allowed with costs of Rs.100." It appears that the appellant filed a second suit namely, Suit No.3945 of 1981 in September, 1981 (which was re‑numbered as Suit No.2280 of 1985) for declaration and other reliefs against the respondents. The same was resisted by the respondents inasmuch as respondent No.1 filed a written statement in which inter alia it was pleaded that the appellant had no cause of action to file the suit. However, it may be stated that no express plea to the effect that the suit was not competent for want of payment of the above costs of Rs.100 was raised in the written statement. According to Mr. Khalilur Rehman, learned counsel for the respondents, an application under Order 7, Rule 11, C.P.C. was filed by the respondents for the rejection of the plaint on the ground of non‑payment of above costs of Rs.100, which was a condition for granting permission to withdraw the above first suit and to rile a fresh suit.

4. Be that as it may' the learned trial Court framed following Issue No.2 on the question of payment of costs: Whether the cost of Rs.100 ordered by IV Court and again by this Court in the order of 21‑11‑1981 was deposited or paid in time to entitle the plaintiff to rile this suit? If not, the effect of 2nd ‑disobedience:" After recording evidence and hearing the parties, the learned Trial Court recorded the following finding on the above Issue No.2: "Issue No.2 There is no document to prove that the costs were awarded. At the most the defendant could recover the same through proper course if it was allowed. There is no bar to rile the present suit on that sole ground."

5. However, the suit was decreed through the aforesaid judgment, dated 2‑10‑1986. Against the above judgment the respondents filed aforesaid. civil appeal, which was dismissed by the judgment dated 10‑9‑1988 passed by the learned IV Additional District Judge (South), Karachi. On the question of payment of costs, the learned Appellate Court affirmed the finding of the learned trial Court on Issue No.2 as follows: "Since neither appellant in the written statement nor her attorney in his evidence have stated in respect of the cost, therefore, in my opinion the findings of trial Court on issue No.2 has been properly passed." Thereupon, the respondents filed the aforesaid revision, which was allowed by the learned Judge in Chambers through the impugned judgment on the ground of non‑payment of above costs of Rs.100. After that the appellant riled a petition for leave to appeal, which was granted to consider the above question.

6. We have heard Mirza Abdur Rashid, learned counsel for the appellant, and Mr. Khalilur Rehman, learned counsel for the respondent No.l. We have also perused the record and the judgments passed by the Courts below. We rind that the learned trial Court as well as the learned appellate Court have not correctly decided Issue No

2. The learned trial Court was not justified in holding that there was no document to prove that the costs were awarded or that at the most the respondents could recover the same through proper Court. The above Issue No.2 was framed on the assumption that factually the cost of Rs.100 was awarded by the learned trial Court in the first suit and that the appellant was directed by the trial Court in the second suit through the order, dated 21‑11‑1981, to deposit the above cost. The burden of proof was on the appellant, which he failed to discharge.

7. The concurrence of the learned appellate Court to the above finding for the reason reproduced hereinabove, was also not warranted and, therefore, the High Court could take a different view on the above question.

8. There cannot be any cavil with the proposition that if under Order XXIII, Rule 2, C.P.C. permission to withdraw a pending suit with the right to file a fresh suit, is granted to a plaintiff subject to payment of certain costs, it is a term on which such permission is granted and in the absence of fulfilment of the same, the suit is liable to be dismissed being incompetent as in the absence of payment of costs, there cannot be a proper suit before the Court. The learned Judge in Chambers, therefore, could reverse the concurrent judgments of the iwo Courts below on the above ground.

9. However, we have noticed that while setting aside the concurrent judgments of the two Courts below, the learned Judge in Chambers, has not taken into consideration the question, whether it was a fit case for condonation of the above omission keeping in view the ratio of the judgment of this Court in the case of Haji Abdul Rasheed Sowdagar (supra), wherein this Court has held as follows: "To put it in a different way, unless the plaintiff satisfies the Court that the terms on which he had received the permission have been satisfied there is no proper plaint before the Court, with the result that no proceedings on the plaint can be taken. The order of dismissal of the suit can, therefore, be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone, bona ride delays, omissions, etc."

10. We have considered the question, whether we should allow the payment of the cost by the appellant at this stage. In this regard, it may be! pertinent to refer rule 6 of Order XXXIII of the Pakistan Supreme Courti Rules, 1980, which provides that "nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the C ourt to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court".

11. In our view, it will not be just and proper to deny two concurrent judgments in favour of the appellant on the above technical round. the High Court should have, in our view, directed the appellant to pay a reasonable amount as costs to the respondents besides the above amount of Rs.100 for condoning the above lapse on his part.

12. We are inclined to allow the appellant to pay above cost of Rs.100 plus a further cost of Rs.900 for the above omission on his part and to remand the case to the High Court for deciding the Revision Application of the respondents on merits.

13. Mirza Abdur Rashid, learned counsel for the appellant, pursuant to this judgment, has paid the above sum of Rs.1,000 to Mr. Khalilur Rehman.

14. We would, therefore, allow the above appeal and set aside the impugned judgment and would remand the case to the High Court for disposal of the above Revision Application on merits. AA./M‑1682/S Case remanded.