P L D 2018 Balochistan 34 (PLP)

MUHAMMAD NOOR MESKANZAI, C.J.

Learned counsel for the petitioner has filed an application under Order XXIII, Rule 1, C.P.C. wherein following relief has been prayed for: "That the applicant prays to this Hon'ble court may kindly allow this application and withdraw the suit bearing No.13/2008 in the interest of justice."

2. The learned counsel for respondents filed rejoinder to application and request for withdrawal of suit was seriously contested.

3. Learned counsel for the applicant/petitioner submitted that the application is seeking simplicitor withdrawal of her suit which is always granted as a matter of right. He further contended that the only condition for grant of an application under Order XXIII, Rule 1, C.P.C. is that the suit must be pending. He stated that the suit of the petitioner was partially decreed and partially dismissed. Both the parties feeling dissatisfied with the judgment and decree passed by the trial Court filed appeals before the appellate Court. He stated that appeal filed by the respondents was accepted and the decree passed in favour of petitioner/plaintiff was reversed, with the result, the suit was dismissed. The petitioner filed this revision petition which was admitted to regular hearing vide order dated 11.03.2010. He stated that revision and appeal are continuity of the proceedings, therefore, there is no legal impediment in the way of petitioner/plaintiff to seek unconditional withdrawal of her suit. He placed reliance on a judgment reported in 2013 SCMR

464. Learned counsel for the respondents vehemently opposed the submissions by maintaining that at revisional stage no withdrawal could be allowed. It was further maintained that the petitioner filed a baseless suit which though was partially decreed, however the appellate court after proper appraisal of material available on record rightly reversed the decree. He further stated that the respondents were subjected to heavy financial loss besides wastage of their precious time for no fault on their part. He further maintained that since the petitioner is sure that her petition lacks legal substance, so to avoid the ultimate dismissal of suit, the application for withdrawal of suit has been filed. He requested for dismissal of application.

4. I have heard learned counsel for the parties and perused the record of the case minutely. Firstly, I would like to deal with the contention that the suit cannot be withdrawn at revisional stage. This argument lacks legal substance and bound to repel because the plain language of Rule XXIII, Rule 1 reveals that at any time after institution of suit a plaintiff may withdrawn or abandon the suit as a whole or a part thereof without permission of court and the Rule does not prescribe any particular stage for withdrawal. Secondly, a suit can be withdrawn with permission to file a fresh one at the level of Hon'ble Apex Court. So, on that analogy simple withdrawal can never be refused just because of the stage of proceedings. In this regard I am fortified by the dictum laid down in the judgment titled as 'Haji Muhammad Boota and others v. Member (Revenue) Board of Revenue Punjab and others' reported in PLD 2003 SC 979 relevant at page 998 is reproduced hereunder: "

4. The power of the trial Court under Rule 1 ibid to allow a plaintiff to withdraw a civil suit and to file a fresh one is also exerciseable, in the like manner, by an Appellate Court including the Supreme Court. See the cases of Ismail v. Fida Ali and another (PLD 1965 SC 634), Muhammad Shafi v. Nawab and others (PLD 1957 Lah. 648), Sheikh Muhammad Ramzan v. Muhammad Asghar Ali (PLD 1984 Lah. 230), Balida Kennayya and others v. Paragada Papayya and another (AIR 1918 Madras 1287 (Full Bench) and Dayal Singh and others v Uttam Kaur (1909 P.R. No.21). Under sub-rule (1) ibid, a plaintiff has an indefeasible right to withdraw his suit or abandon a part of his claim after institution of suit without the permission of a the Court. In such a case, as provided by sub-rule (3) ibid, the plaintiff 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. However, the Court may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or part of claim where the conditions laid down by sub-rule (2) ibid are satisfied."

5. As discussed above, during the pendency of proceedings, law does not contemplate any stage for withdrawal of a case conditional or unconditional. However, withdrawal is subject to the satisfaction of court and consequences contemplated by the provisions of Order XXIII, C.P.C. The perusal of record reveals that the petitioner and respondent No.1 being sisters are descendants of one Sheikh Abdullah, the respondent No.2 is brother-in-law and the respondent No.3 is son-in-law of the respondents Nos.1 and

2. After demise of Sheikh Abdullah the property of latter devolved upon petitioner and respondent No.1 . The petitioner filed suit for distribution, partition of inherited property of deceased Shaikh Abdullah and cancellation of mutation Khewat Khatooni No.73/73, Khasra Nos.421, 422, 423, situated at Malik Dad Karim Ward and Haji Abdul Saleem Mohallan, at Turbat. The respondents claimed to have purchased her share and disputed the claim over rest of the property on the ground that it does not belong to Shaikh Abdullah. The trial court passed a partial decree in favour of petitioner vide judgment and decree dated 26.11.2009 and dismissed the suit qua rest of the property. Both the parties feeling dissatisfied preferred Civil Appeals Nos. 103 and 111 of 2009 before Majlis-e-Shoora Mekran at Turbat. The learned appellate Court vide judgment and decree dated 13.01.2010 dismissed the appeal filed by the petitioner and accepted the appeal filed by respondents, resultantly the decree passed in favour of petitioner was reversed. During pendency of this petition the petitioner's learned counsel has filed the instant application under Order XXIII, Rule 1, C.P.C. and sought unconditional withdrawal of her suit.

6. Since the applicant/petitioner is seeking unconditional withdrawal of her suit, therefore, this right can be exercised by a plaintiff at any stage of proceedings and plaintiff cannot be forced to proceed with his/her case if he or she does not want to proceed with the suit. There is no cavil with the legal position that a plaintiff shall have a right of simple withdrawal of his/her case subject to consequence contemplated by Order XXIII(1), Sub-Rule (3) and conditions stipulated by sub-rule (4) of the Order XXIII, C.P.C. This is prerogative of the plaintiff to withdraw his/her suit at any stage except in a case where preliminary decree has been passed and some rights have been created for someone else which is not the case here. Of course, the respondents have been burdened with financial loss, besides their time has been wasted, but nevertheless this by itself cannot constitute a valid and reasonable ground to decline the request of withdrawal because unconditional withdrawal of suit is a legal and vested right of a plaintiff, subject to the conditions and consequence contemplated by sub-rules (3) and (4) of Order XXIII of C.P.C. By holding the view, I am fortified by the dictum laid down in the judgment titled as 'Muhammad Yar (deceased) through LRs. and others v. Muhammad Amin (deceased) through LRs and others' reported in 2013 SCMR 464, wherein it has been observed as under: "From the clear language of the above, it is vivid and manifest that the noted rule mainly comprises of two parts; sub-rule (1) entitles the plaintiff of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any one of the defendants, at any stage of the proceeding and this is his absolute privilege and prerogative (Note: except in certain cases where a decree has been passed by the Court such as in the cases pertaining to the partition of the immovable property etc.). And where the plaintiff has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant(s) and this bar is absolute and conclusive, which is so visible from the mandate of sub-rule (3). However, sub-rule (2)(a)(b) is/are a kind of an exception to the sub-rules (1) and (3), in that, where a plaintiff wants to file a fresh suit after the withdrawal of his pending suit on the basis of the same cause of action about the same subject matter and the same defendant(s), he shall then be obliged to seek the permission of the Court in that regard; however such permission shall not be granted as a matter of right or as a matter of course/routine, rather the judicial conscious of the Court should be satisfied that, if the permission is not given the said suit shall fail on account of any formal defect, (Note: for the present what is a 'formal defect' is not a moot point therefore, this aspect is not being touched herein) or that there are other sufficient grounds for allowing the plaintiff to withdraw the suit with a permission to institute a fresh suit; in respect of "sufficient grounds" no hard and fast criteria can be laid down and it depends upon the facts of each case, whether a case in that regard is made out or not." For the forgoing reasons, I am inclined to accept this application under Order XXIII, Rule 1, C.P.C. filed by the applicant/petitioner and allow the plaintiff to withdraw her suit subject to cost of Rs.10,000/- (rupees ten thousand only) to be paid to the respondents. Since the suit has been withdrawn, therefore, it is dismissed as withdrawn and the judgments and decrees passed by the trial Court as well as appellate Court are hereby set aside. This the petition is disposed of in above terms. ZC/163/Bal. Order accordingl