1999 PLP 1683 (YLR)

Brief facts of the case relevant to the decision in this suit are that the defendants field Suit No. 1148 of 1996 (hereinafter referred to as "the first suit") against inter alia the plaintiffs on 22‑11‑1995. The plaintiffs (defendants in the first suit) made appearance on 8‑5‑1997, thereafter, the matter was adjourned to 19‑3‑1997 and then to 8‑5‑1997. On 6‑5‑1997 the defendants (plaintiffs in the first suit) filed an application being C.M.A. No.3175 of 1997 under Order 23, Rule 1, C.P.C., which read as under:‑‑ "It is respectfully prayed on behalf of the plaintiffs that they may please be allowed to withdraw the above suit pending before this Honourable Court with permission to file a fresh suit subsequently if necessary." (Underlined portion deleted by hand). This application came up before the Additional Registrar on 8‑5‑1997 when the plaintiffs (defendants in the first suit) filed their written statement alongwith counter claim. On 26‑5‑1997 the application under Order 23, Rule 1, C.P.C. i.e. C.M.A. No.3175 of 1997 came up in Court. The learned Judge dictated the order on this application wherein he allowed the application and dismissed the first suit as withdrawn. It appears that this application was heard in the absence of the defendants in the first suit and before the order could be signed, the learned counsel for the defendants in the first suit appeared before the learned Judge and informed him of the reasons for his absence earlier in the day. Consequently, a late diary was written by the leaned Judge wherein the learned Judge issued notice to the plaintiffs for arguments on rule 166 of the Sindh Chief Court Rules (O.S.) in view of the fact that the defendants in the first suit claimed that their counter‑claim ought to be now proceeded with as an independent suit in view of the withdrawal of the suit by the plaintiffs in the first suit. This matter again came up in Court on 15‑9‑1997 for hearing of the C.M.A. No.3175 of 1997 and for orders on other applications but the matter was adjourned by consent of parties to 18‑9‑1997. This matter then came up before the Court on 18‑9‑1997. On that day C.M.A. No.3175 of 1997 in the first suit was allowed and the suit was dismissed as withdrawn and it was ordered that defendants' counter‑claim was to proceed as a separate suit and that fresh summons be issued to all defendants in the new suit. Subsequently, in this suit the defendants (plaintiffs in the first suit) have filed this application under Order 7, Rule 11, C.P.C. whereby they seek the plaint be rejected on the grounds that (1) the independent suit is not competent, (2) this suit is totally different to the counter‑claim filed in the previous suit, (3) since it is a different suit, fresh court‑fees ought to have been paid, and (4) that this Court has no jurisdiction in the matter. In so far as the plaintiffs are concerned they state that this in fact was a counter‑claim in Suit No.1148 of 1996 and that the Court had permitted this suit to be filed as an independent suit consequent upon the withdrawal of the first suit. They, therefore, maintain that this suit cannot be regarded as a separate suit and is in fact a continuation of the counter‑claim in the first suit and hence no court‑fees are payable afresh. As regards the question of jurisdiction, the plaintiffs maintain that on this ground the plaint cannot be rejected and if the Court finds that it has no jurisdiction in the matter plaint can only be returned to be filed in a Court of proper jurisdiction. In any case the plaintiffs maintain that the defendants had submitted to the jurisdiction of this Court in the first suit and hence they cannot now be heard to say that this Court has no jurisdiction in the matter. They also contend that there is sufficient cause of action for filing of this suit in this Court and that to determine whether there is cause of action or not, the Court has to only examine the plaint and not any extraneous material. In order to decide whether this suit is a continuation of the earlier counter‑claim or not, because on that depends the decision of other points raised bar the defendants, one has to re‑examine the circumstances in which the counter‑claim was filed in the first suit. Now it is clear that the counter‑claim was filed before the Registrar on 8‑5‑1997 alongwith the written statement and it was on the same day that the application for withdrawal of the first suit also carne up before the; Registrar. Nevertheless, it is a fact that the application for withdrawal of the suit was presented in Curt two days earlier i.e. on 6‑5‑1997. The application that was filed for withdrawal of the suit was initially an application under Order 23, Rule 2, C.P.C. i.e. with permission to file a fresh suit but then the sentence regarding permission to file a fresh suit was crossed out in hand and thereby the application was converted into an application under Order 23, Rule 1, C.P.C., that is to say, an unconditional withdrawal. It ‑is contended by the learned counsel for the plaintiffs that this crossing out of the relevant portion was done before the Registrar on 8‑5‑1997. A perusal of the application indicates that the crossed out portion does bear initials of the advocate but no date. It would, therefore, be presumed that the initials were made on the day that the application was presented i.e. 6‑5‑1997. Considering that the learned counsel for the plaintiffs maintain that this crossing out was done before the Registrar one would presume that the Registrar would have ensured that the date of the crossing would have been mentioned under the initials. In any case ordinarily it must be presumed (unless it is alleged to the contrary in the plaint) that once document is filed in Court it cannot be amended without the permission of the Court. Consequently, in the absence of any allegations to this effect in the plaint or affidavit. I would hold that this application was presented on 6‑5‑1997 with the crossed out portion. The learned counsel for the plaintiffs relied on following case‑law (1) AIR 1934 Madras 337, (2) AIR 1934 Rangoon 160, (3) AIR 1958 Bombay 28, (4) AIR 1962 Patna 426, (5) PLD 1977 Karachi 933, (6) PLD 1992 Karachi 21, (7) 1992 SCMR 485, (8) 1997 MLD 2996 (9) PLD 1968 Karachi 480 and (10) PLD 1964 (W.P.) Karachi

11. This being the case the question arises what is the effect on the suit itself? It has been contended before me by the learned counsel for the defendants that once an application under Order 23, Rule 1, is filed the suit comes to an end immediately and no further orders of the Court are necessary. In other words what the defendants are saying is that the suit dies immediately upon filing of an application under Order 23, Rule 1, C.P.C. If it were to be so then it would mean that on 6‑5‑1997, when the application was filed there was no suit thereafter and hence the written statement and counter‑claim filed thereafter was of no consequence and, thus, counter‑claim never came into existence. The learned counsel for the defendants have relied on following case‑law. (1) 1996 CLC 94, (2) PLD 1998 Karachi 42, (3) PLD 1962 Lahore 126, (4) AIR (38) Madras 841, (5) AIR 1950 Madras 57, (6) PLD 1959 SC 287, (7) PLD 1971 Lahore 395, (8) AIR 1975 SC 957, (9) PLD 1981 Lahore 441, (10) AIR 1957 Calcutta 57, (11) L.R. 1909 (Probate Division) 25, (12) 1998 CLC 165, (13) PLD 1959 (W.P.) Karachi 624, (14) PLD 1992 Karachi 177, (15) 1998 SCMR 1618, (16) (1960) 1 Queen's Bench Division 134, (17) Court of Appeal 1984 433, (18) PLD 1996 SC 292, (19) PLD 1995 SC 66, (20) 1923 Bombay 24, (21) 1988 CLC 1575 and (22) 1993 SCMR

866. However, the law as it has developed points to the contrary. By now it is well- established that the mere filing of an application for the unconditional withdrawal of the suit does not bring the suit to an end. The suit continues because the Court may decide to grant costs and also that the applicant has locus poenitentia inasmuch as he can at any time before final orders being passed on the application withdraw his application. Besides, the fact remains that once a suit is withdrawn unconditionally then the plaintiffs cannot bring the same action again against the defendants. It is obvious that if this be the consequence of withdrawal some orders of the Court is necessary. The conclusion to be drawn from this would be that the suit indeed continues till such time that it is finally dismissed by order of the Court. In this case such orders were passed on 18‑9‑1997. Thus, before me there are two dates one, 6‑5‑1997 when the application for withdrawal of the suit was filed and the other, 18‑9‑1997 when the suit was finally dismissed by order of the Court, The question is, what is the status of the claim/suit between the two dates. In order to answer this question it would be necessary to distinguish between withdrawal of claim and withdrawal of suit. Clearly when the application was filled on 6‑5‑1997 it can be said that on that day the plaintiffs had withdrawn their claim. Thereafter, the plaintiffs would deem to have declared that they have no further claim against the defendants in the first suit but the suit itself continued till it was finally buried on 18‑9‑1997. Thus, it is possible to distinguish between a claim and a suit, that is to say, that while there may not be any claim the suit may continue or conversely there may be a claim but a suit cannot be filed. The only analogy that comes to my mind with regard to this is the example of a suit barred by time under the Limitation Act. If a suit is barred by time it is clear that a suit cannot be filed but the claim will remain, the only difference is that the claim cannot be enforced through filing of a suit. To put it differently a claim is translated into a suit only when it is embellished with legal trappings and when so embellished its existence or extinction is dependant upon pronouncement of the Court. But shorn of these trappings it remains just a claim simpliciter existing or waning at the will of the claimant. Clearly, therefore, while a claim and a suit become inter‑dependant upon a suit being filed, they continue to belong to different species and it is possible for one to exist without the other even if these are before a Court. Now the question arises that if there was no claim on 6‑5‑1997 that is the date of filing of the application, for withdrawal of the first suit, can there be counter‑claim? Needless to say that a counter‑claim can arise only if there is claim, not otherwise. It is significant to note that the words used in rule 162‑167 of Sindh Chief Court Rules (O.S.) are 'counter‑claim' and not 'counter‑suit'. Consequently, if the claim ceased to exist the counter‑claim also disappears. Looking at this case in this perspective, on 8‑5‑1997 when the counter claim was filed there was obviously no claim in existence. It is true that the plaintiffs in the first suit have locus poenitentiae and they could always withdraw that application but in that event the counter‑claim already filed would stand revived. The fact that the application was not withdrawn would mean that the counter‑claim never came into existence. Subsequent orders regarding dismissal of this suit as withdrawn on 18‑9‑1997 clearly indicate that the Court permitted a fresh suit to continue and directed issuance of fresh summons to the parties. It is obvious that the Court at the time did not see this fresh suit as continuation of the counter claim otherwise fresh summons would not have been directed to be issued. The fact, which is not denied, that the parties in the fresh suit filed were different to those in the counter‑claim and also that there were variations in the text of the plaint as compared to the counter‑claim filed earlier would indicate that these were fresh proceedings in every sense of the word. This being the case this suit ought to have been treated as a fresh suit and accordingly court fees should have been paid. The fact that the court‑fees were earlier paid in counter‑claim would be of no assistance to the plaintiffs inasmuch as this suit was a completely new suit quite unrelated to the previous counter claim, which in any case never came into existence. I, therefore, hold that court‑fees ought to have been paid before filing this suit though the plaintiffs will always be at liberty to move for the refund of the court‑fees paid with the counter‑claim if permissible by law. Now Order VII, Rule 11, C.P.C. with regard to court‑fees is clear and the relevant portions of Order VII, Rule 11 C.P.C. read as under:‑‑ "(a) .........................................; (b) where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) ......................................... A plain reading of the above provisions would show that plaint can only be rejected for payment of deficient and I would say even non‑payment of court‑fees, if the latter is due to some misunderstanding or bona fide mistake, if after an opportunity given by Court to make up the deficiency the plaintiff fails to do so. I, therefore, direct that the plaintiffs pay the requisite court‑fees in this suit within 30 days from the date of this order. In so far as the contention of the defendants with regard to the non -maintainability of independent suit is concerned, I find that there is little force in their arguments in this regard. Even though I have held that the counter‑claim never came into existence but the fact remains that the Court vide its order, dated 18‑9‑1997 in the first suit had allowed for the claim to be proceeded with as a separate suit and had directed fresh summons to be issued, I find that the suit wall be maintainable particularly in view of the fact that the said order of the Court has by now attained finality. As regards the question of jurisdiction of this Court, the main contention of the defendants is that the claim in suit relates to events abroad and, thus, no cause of action has accrued to the plaintiff within the jurisdiction of this Court in the matter. I am of the view that the question of jurisdiction involved cannot be decided without further evidence as the defendants on the face of it were considerably involved in the activities of the plaintiffs in Pakistan and it is not possible to say without leading further evidence whether any part of cause of action arose in Pakistan or not. I, therefore, frame following preliminary legal issue and direct that the matter be fixed for trial on this preliminary issue: "Whether this Court has jurisdiction in the matter or not?" With these observations this C.M.A. is disposed of. Q.M.H./M.A.K./G‑84/K Order accordingly.