2025 PLP 1070 (CLC)

KHADIM HUSSAIN SOOMRO, J.

Through this Civil Revision, the petitioner impugned the order dated 11.12.2024, passed by the learned Additional District Judge (West), Islamabad, whereby the application for withdrawal of suit filed by respondent No.1 was dismissed.

2. Brief facts leading to file the instant civil revision are that respondent No.1/Fawad Ahmed, filed suit for partition, separate possession according the respective share and permanent, mandatory injunction against the petitioners/defendants with the claim that they are the legal heirs of deceased Muhammad Nazir, the original owner of the House No. 883, Street No.79, Sector I-8/3, Islamabad (hereinafter referred to "suit property"). After the death of the deceased father, petitioner No.3/Jawad Ahmed filed a suit for declaration, and the same was decreed vide order dated 06.10.2021. Hence, petitioners and respondent No.1 became co-sharers of the suit property. Respondent No.1/plaintiff claimed that petitioners rented out the suit property after the death of their father and receiving the rent but not giving him his lawful share, therefore, he requested for partition of the suit property but petitioners/defendants refused to do so, hence, respondent No.1 filed suit, which was contested by the defendants/petitioners with the claim that suit property is not partition-able and they are ready to purchase the share of plaintiff/respondent No.1. However, on 08.09.2022, learned counsel for the defendants stated that plaintiff and defendants are co-shares of the suit property and have no objection on its partition. Hence, a preliminary decree was passed and Ch. Shahbaz Akhtar, Advocate, was appointed as the local commission for the inspection of the property and submission of the report. The local commission, after inspecting the suit property, submitted its detailed report, which was objected to by the defendants/petitioners. The learned trial court ordered the auction of the suit property vide the order dated 29.01.2024. Thereafter, respondent No.1/ plaintiff files an application for withdrawal of the suit with the consent of petitioners/defendants; the same was dismissed vide impugned order dated 11.12.2024. Hence, this civil revision.

3. Learned counsel for the petitioners submits that learned Additional District Judge, Islamabad failed to appreciate the contentions of petitioners; that both the parties do not wish to proceed further in the matter and settled their dispute through family settlement; that plaintiff has every right to withdraw the suit at any stage of proceedings but trial court has ignored the settled principle and passed the impugned order, which is liable to be set-aside.

4. On the other hand, learned counsel for respondent No.1, raised no objection on the acceptance of instant revision and submits that respondent being plaintiff had filed an application for withdrawal of suit but trial court rejected the same.

5. Learned counsel for CDA submits that CDA has no objection, if both the parties agreed to settle their dispute out of court, through family settlement.

6. I have heard all the parties and perused the record.

7. It is an incontrovertible and well-established principle of law that the plaintiff has an unqualified right to withdraw the suit at any stage of the proceedings. It is imperative to note that in assessing the propriety of the plaintiff's exercise of the unqualified right to withdraw a suit, the court must refrain from imposing restrictions that would undermine, curtail, obstruct, or nullify the statutory entitlement conferred upon the plaintiff. The judicial authority must, in all such instances, acknowledge the plaintiff's absolute prerogative where no prejudice is caused to any party. The underlying objective is to ensure that such unfettered rights are exercised in a manner consistent with the equitable dispensation of justice rather than in a way that extinguishes the legally vested rights of the plaintiff.

8. The question before this court is whether, once a preliminary decree has been passed in a partition suit, the suit can be allowed to be withdrawn. The Honorable Supreme Court, in its judgment reported as PLD 2010 SC 913, reaffirmed its earlier precedent established in 1992 SCMR 485, holding that Order XXIII, Rule 1 of the Civil Procedure Code expressly confers upon the plaintiff an unequivocal right to withdraw the suit at any stage subsequent to its institution, whether against all or any of the defendants. This prerogative extends to the withdrawal or abandonment of either the entire claim or any portion thereof. However, this general principle becomes inapplicable in instances where a preliminary decree has been passed and, consequently, third-party interests have crystallized that would be prejudicially affected by such withdrawal. In such contingencies, the exercise of the right to withdraw is contingent upon obtaining consent from such affected third parties. This legal position finds further support in Hulas Rai Baijnath v. K. Bass and Co. Limited (AIR 1963 Allahabad 368), which categorically held that in the absence of a preliminary decree, arbitral award, or compromise agreement, the plaintiff retains an unfettered right to withdraw the suit. The apex court further reinforced this interpretation by referencing 1996 SCMR 1433 and PLD 1988 Karachi 560, which established that in certain categories of suits or proceedings where both plaintiff and defendant may potentially be entitled to relief.

9. In the case at hand, after the passing of the preliminary decree, Mr. Ch. Shahbaz Akhtar, Advocate, was appointed as the local commission for the inspection of the property and submission of the report. The local commission, after inspecting the suit property, submitted its detailed report, which was objected to by the defendants/petitioners. The learned trial court ordered the auction of the suit property vide the order dated 29.01.2024. Meanwhile, the plaintiff and the defendants entered into a compromise, and a Family Settlement deed was executed among them and the same was also brought on the record-of-this court as well as before the trial court and the same transpires that both parties, namely the plaintiff and the defendant, don't wish to proceed with the matter further due to a family settlement. No doubt the preliminary decree creates a right in favour of parties, however, both the parties do not want to enforce the same through the Court proceedings, instead they preferred to get their matter settled through family settlement.

10. Persons united by lineal descent from a common progenitor or by proximate consanguinity have executed a family settlement deed with the aim and objective of amicably resolving existing controversies with the intention of preserving domestic tranquility. A family settlement constitutes an arrangement whereby cognate kindred mutually undertake to compose their differences and terminate existing disputes through permanent adjustment. Such concordats are designed to establish familial harmony and reciprocal benevolence, thereby securing domestic peace. The judiciary accords particular sanctity to such familial arrangements and sustains their validity when concluded with bona fide intention. This jurisprudential principle has evolved through prolonged adjudicatory recognition as an efficacious instrument to deter litigiousness motivated by avarice, particularly in matters concerning the distribution of hereditary estates. Reliance is placed in the case of Bashir Ahmed (deceased) through his legal heirs and others v. Nazir Ahmed and others (2024 SCMR 1984).

11. For the foregoing reasons, this Civil Revision is allowed, and the impugned order dated 11.12.2024, passed by the learned Additional District Judge, Islamabad-West in Suit No.114 of 2022, Titled [Fawad Ahmed v. Farhat Nazir, etc.] is hereby set aside. Consequently, the suit filed by the plaintiff shall stand dismissed as withdrawn in terms of Order XXIII Rule 1 of the Code of Civil Procedure, 1908. MH/67/Isl Revision allowed.