2022 PLP 1629 (YLR)

MUHAMMAD SAJID MEHMOOD SETHI, J.

Through instant petition, petitioner has assailed vires of order dated 04.08.2021, passed by learned Additional District Judge, Okara, whereby petitioner's application for withdrawal of suit and appeal along with permission to file fresh suit, was dismissed.

2. Brief facts of the case are that petitioner filed suit for declaration along with permanent injunction. During proceedings of the suit, respondents Nos.3 to 9 filed application for rejection of plaint, which was accepted and plaint was rejected under Order VII, Rule 11, C.P.C., vide order dated 20.02.2019. Feeling aggrieved, petitioner preferred appeal against the aforesaid order before learned Additional District Judge. During proceedings of the appeal, petitioner filed application for withdrawal of suit and appeal along with permission to file fresh suit, which was dismissed vide order dated 04.08.2021. Hence, instant revision petition.

3. Learned counsel for petitioner submits that impugned order is based upon misinterpretation of applicable law. He adds that the law favours adjudication of the cases on merits, but learned Appellate Court has dismissed petitioner's application thereby ignoring the aforesaid principle of law. In the end, he submits that impugned order is unsustainable in the eye of law. In support, he has relied upon Ismail v. Fida Ali (PLD 1965 Supreme Court 634), Pehlwan and others v. Haji Muhammad Murad and others (2005 SCMR 1405), Sayedur Rahman Molla and another v. Abdur Rahman and others (PLD 1961 Dacca 844) and Muhammad Dawood Khan v. Abdul Ghani and 2 others (2021 CLC 1766).

4. On the contrary, learned counsel for respondents Nos.3 to 9 defends the impugned order by contending that the application moved by petitioner before learned Appellate Court was devoid of any sufficient grounds. In support, he has referred to Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others (2001 SCMR 148), Messrs Artisans Craftsmen, Rehabilitation Society and 2 others v. Mst. Asif Jahan Begum and 10 others (1990 MLD 1702) and Khawaja Bashir Ahmed and Sons (Pvt.) Ltd., Multan v. Messrs MARTRADE Shipping and Transport, GmbH through Brokers / Local Agents and another (2015 MLD 1459).

5. Arguments heard. Available record perused.

6. Perusal of record shows that petitioner filed suit for declaration along with permanent injunction on the basis of relinquishment deed dated 25.04.2009, plaint whereof was rejected under Order VII, Rule 11, C.P.C. on the ground that petitioner failed to disclose any cause of action as the said document, having not been registered, did not confer any right, thus, same was ineffective. However, during the course of proceedings before learned Appellate Court, petitioner moved application for withdrawal of suit and appeal along with permission to file fresh suit; which was dismissed with the observation that serious prejudice may cause to the respondents in case of acceptance of said application.

7. Needless to observe here that permission to withdraw a suit can only be granted to remove a defect, which is apparent or formal and its presence in the suit may fail the same. Where the defect is latent and touches merits of the case, then permission to withdraw the suit on this score cannot be granted. It is pertinent to mention here that the existence of sufficient grounds is condition precedent for allowing the plaintiff to institute a fresh suit, however, in this case, neither petitioner has pointed out any formal defect in the suit nor his application disclosed any justification for extending permission to her to withdraw the suit and file fresh one on the subject matter. Reliance in this regard is placed upon Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 Supreme Court 979), Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others (2013 SCMR 464), Muhammad Yousaf and others v. Nazeer Ahmed Khan (Deceased) through LRs and others (2021 SCMR 1775), Ghulam Rasool v. Government of Punjab through District Officer (Revenue), Sahiwal and 4 others (2016 MLD 1660) and The Fauji Foundation Charitable Trust through Major (Retd.) Ikram-ul-Haq v. Federal Land Commission through Chairman and 7 others (2020 YLR 2188).

8. Even otherwise, filing of application for withdrawal of the suit under Order XXIII, Rule 1(2), C.P.C. to circumvent the bar imposed under Order VII, Rule 11, C.P.C., is itself defective and mala fide as well. Learned counsel for petitioner has failed to point out any illegality or legal infirmity in the impugned order which is unexceptionable. The case law, cited by learned counsel for petitioner, is quite distinguishable, thus, not applicable to the present scenario.

9. Resultantly, instant revision petition, being devoid of any merit, is hereby dismissed. No order as to costs. SA/N-20/L Petition dismissed.