1991 PLP 808 (CLC)

It is an admitted position that the cost was not paid up to the date fixed by the Court. Thereafter issues were framed on 21‑3‑1985. Issue No.2 reads as follows:‑ "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. file this suit? If, not, the effect of 2nd dis‑obedience?" The parties led their evidence. The respondent did not make any reference to payment of cost in examination‑in‑chief but in cross‑examination he stated as follows:‑ "It is a fact that prior to this suit I had filed another suit No.3907/80 in the Court of IVth Sr. Civil Judge between the parties. That suit was withdrawn by my Advocate with permission to re‑file the same. I do not know if my advocate had deposited the cost in the Court or not. I do not have knowledge of it." The Applicant's Attorney Noor Muhammad also stated as follows:‑‑ "The plaintiff filed suit before IVth Sr. Civil Judge, Karachi which was dismissed with cost of Rs.100 that amount was not paid to me before filing the suit." This statement has not been challenged in cross‑examination. There is no other proof on record to establish that the cost of Rs.100 was paid. However, learned Trial Court and the First Appellate, Court were of the view that the cost could be paid at any time under Section 35‑A of the C.P.C. Even after this observation till today the cost has not been deposited or paid by respondent No.l. In these circumstances Mr. Khalil‑ur‑Rehman, learned counsel for the applicant has contended that as respondent No.1 has not complied with the order passed by the learned Civil Judge permitting him to withdraw the suit on payment of cost, deprived him from filing. present suit and it is not maintainable. On the other hand Mr. Khalid Daud Pota, learned counsel for the respondent, has taken the stand that no time for payment of cost was fixed and after it was fixed by order dated 21‑11‑1981 no demand to date was made by the applicant and, therefore, respondent No.1 cannot be treated as defaulter. He further contended that such costs are usually not demanded by Advocates or are settled amongst them. But he admits that there is no proof of such settlement amongst the advocates nor there is any document to show payment. The payment of cost was ordered in terms under Order XXIII Rule 2, C.P.C. where the Court is authorized to impose conditions or terms for withdrawal of the suit. From the very beginning the applicant had opposed the withdrawal of the suit and also demanded cost. Therefore, order was passed by the learned Civil Judge imposing cost. However, such cost has not been paid in compliance of the order of the Court. Learned Civil Judge has taken lenient view and seems to have condoned the default and extended time by order dated 21‑11‑

81. Mr. Khalil‑ur‑Rehman, learned counsel for the applicant has referred to Haji Habib Rashid Sowdagar v. S.M. Lalita Roy and others (P L D 1959 SC (Pak.) 287) where the legal position emerging from Order 23 Rule 1, C.P,C., has been stated in the following manner:‑‑ "The basic principle in bar of a party's right to sue is that he is not barred from suing unless the suit is barred by some provisions of the. Civil Procedure Code. Such provisions are found in scattered Rlaees in the Civil Procedure Code, and the most important of them are section 11, Order 11,.Tule 2, Order IX, rule

9. Rule 1 of Order XXIII, is as follows:‑‑ 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 such suit or such part of a 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. Rule 2 provides that in any fresh suit instituted on permission granted under rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. It will be noticed on a perusal of sub‑rules (1) and (2) that whereas under sub‑rule (1) the plaintiff may withdraw his suit at arty stage of the proceedings and without an order of the Court, under sub‑rule (2) he has to obtain the permission of the Court for withdrawal and the Court's own power to permit withdrawal is limited to the instances, specifically mentioned in clauses (a) and (b). Again, whereas the result of a withdrawal without permission under sub‑rule (1) is that the plaintiff by sub‑rule (3) precluded from instituting a fresh suit, no such consequence is stated in sub‑rule. (2) as following from the withdrawal of the suit and not complying with the conditions on which the permission to withdraw was given. It is, therefore, incorrect to apply sub‑rule (1) to cases like this and to invoke the consequence stated in sub‑rule (3) by holding that where a plaintiff to whom a permission to institute a fresh suit was given does not comply with the conditions on which he obtained the permission, he must be deemed to have withdrawn his sub under sub‑rule (1) not is it correct to state that since the conditions on which the permission to institute a fresh suit was given has not ' been complied with the original suit must be deemed to be pending. The withdrawal is complete the moment an order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted. But sub‑rule (2) expressly states that in granting the permission the Court may impose "such terms as it thinks fit." If such terms have been imposed by the Court then the right to bring a fresh suit is curtailed because the fresh suit can be brought only if the conditions imposed by the Court are fulfilled. The question then is what would be the consequence if any of the terms on which permission to withdraw with liberty to institute a fresh suit was given is not fulfilled. The answer can only be that unless the condition is complied with there is no proper suit before the Court. In such a case the defendant is entitled and the Court has the power to demand that if the plaintiff wishes to proceed with the suit he must comply with the terms on which permission to withdraw was given. And leaving the question of limitation aside the plaintiff may at any time comply with the terms and. on proof that he has so complied may demand the Court to proceed with the suit. 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 ran, 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." The observation made in this judgment applies to the facts of the present case. As the condition has not been complied with, there is no proper suit before the Court as observed by the Supreme Court. The Judgment and Decree passed by both the Courts below is set aside and the suit is dismissed. The parties to bear their own costs. The Revision Application is allowed. A.A./M‑1338//K Revision accepted.