2021 PLP 1282 (CLC)

ROZI KHAN BARRECH, J.

Through this constitution petition following relief has been sought: "It is therefore requested that impugned order passed by Additional District Judge-V, Quetta on 08.09.2018 may be set aside / strike down and Civil Suit No.67/2017 may be ordered to be pending before Judicial Magistrate IX/Civil Judge Quetta and direction be issued to be decided on merits. This will meet the ends of justice. Costs throughout may also be awarded."

2. Brief facts of the case are that the petitioner filed a suit bearing No. 67 of 2017 for declaration, possession, recovery of mesne profit, permanent injunction and consequential relief before the learned Judicial Magistrate-IX/Civil Judge, Quetta ("trial court") against the respondent No.1 with the averment that the petitioner is lawful owner of property/plot, vide mutation No.142, bearing Khasra Nos.3094, 3090, 3087, 3079. 3076, 2067, 1393 measuring 384 sq-ft, Mahal Tareen Shehr, Mouzaz Kotwal, Tappa Durrani-I, Tehsil Saddar, District Quetta, which was allotted to the petitioner, vide Plots Nos.28, 29 situated at Teacher Colony No.1, Khan Shaheed Road, Tareen Shehr Nawan Killi, Quetta. It was further averted in the plaint that the petitioner proceeded to Islamabad for his personal work and, when he returned back to Quetta the respondent No.1 had constructed two shops over the said property with further construction going on. The petitioner then directly approached the respondent and asked him about illegal act and occupation over the property in question and shows him the allotment and mutation of the same, but the respondent became furious and started threatening the petitioner for dire consequences and refused to hand over the possession to him. Thus, the petitioner filed the civil suit. The suit was contested by the respondent by means of filing written statement. During pendency of the suit the respondent No.1 filed an application under Order VII, Rule 11, C.P.C. before the trial court which was dismissed vide order dated 14.04.2018. Being aggrieved from the above order, the respondent No.1 filed civil revision under Section 115, C.P.C. before the District Judge-V, Quetta. After hearing arguments of learned counsel for the parties the revision petition was accepted vide order dated 08.09.2018 (hereinafter "the impugned order") and the plaint of second suit filed by the petitioner was rejected under Order VII, Rule 11, C.P.C. Hence, the instant petition.

3. We have heard the learned counsel for the parties and have also gone through the record of die case.

4. Record reflects that previously the petitioner filed a Civil Suit bearing No. 07 of 2014 for declaration, possession and permanent injunction against respondent No.1 before the Civil Judge-VII Quetta. On 11.12.2014 an application under Order XXIII, Rule 1, C.P.C. for withdrawal of the pending suit was filed through counsel by the petitioner before the trial court, which was accepted vide order dated 16.12.2014. The parties, facts of the case and cause of action of the suit which was withdrawn unconditionally and the present suit arc the same.

5. The petitioner withdrew his previous suit through counsel simpliciter within the meaning of Order XXIII, Rule 1, C.P.C., which says that "at any time after institution of a suit plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of the claim." Order XXIII, Rule 1, provides that when there is total withdrawal of the suit, the suit is dismissed as withdrawn and finally dispose of the suit it brings an end to the litigation by sub-Rule (3) of Rule 1, C.P.C. a fresh suit is barred.

6. The order sheet dated 16.12.2014 passed by learned Senior Civil Judge-VII in Civil Suit No. 60/2014 in respect of withdrawal of the suit simpliciter is that the petitioner in respect of same cause of action and simpliciter withdrawal of the previous suit, therefore no subsequent suit for declaration, permanent injunction, possession filed by the petitioner was also hit by sub-rule (3) of Rule 1 of Order XXIII, C.P.C. In the case of Hashim Khan v. National Bank of Pakistan, PLD 2001 SC 325, the apex Court in a similar proposition observed as under:- "It may also be observed that during previous suit payment was made to the appellant subject to conditions contained in letter dated 10-10-1991, referred to hereinabove. The appellant also submitted reply with willingness for unconditional withdrawal of the suit subject to payment of Rs.24,40,110 towards full satisfaction of his claim. The withdrawal order passed by the Court mentioned hereinabove further shows that withdrawal simpliciter was without granting permission to file fresh suit. Under the circumstances, such withdrawal under abovementioned orders debars institution of any fresh proceedings concerning such matter or part thereof. It is borne out from the record that payment of Rs.24,10,110 was made in full and final settlement of the total liabilities accruing in connection with deposit made by the appellant with the respondent-bank. Admittedly, originally compensation or interest was not claimed. Moreover, while compromising with the respondent-bank outside the Court, whereby such settlement was effected, no such demand was put forth by the appellant towards the payment of compensation or interest. Under these circumstances, the subsequent suit for compensation regarding blockage of money or interest with regard to original amount, in our considered view, is not based on sound reasons, which cannot be accepted." In the case of Shahbaz Khan v. Additional District Judge, Ferozewala and others it was observed by the Hon'ble apex Court as under: "

1. The respondents filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (C.P.C.), which was declined by the learned Trial Court. However, in revisional jurisdiction the application was accepted and the suit was dismissed on two grounds, firstly, that the second suit was hit by the provisions of Order II, Rule 2, C.P.C. as the first suit was withdrawn without permission of the Court to file afresh suit, and secondly, that it did not disclose any cause of act ion. This order was affirmed by the learned High Court in the writ petition through the impugned judgment.

2. Having heard the learned counsel for the petitioner, we find that he (the petitioner) on the basis of oral gift and the mutation No.127 dated 23.07.1990 had no right in the property, because the order dated 24.07.2003 passed by the Member Board of Revenue is clear and unambiguous. This order was affirmed by the learned High Court vide its judgment dated 08.10.2003. Therefore, the petitioner could not have challenged the same order again through a civil suit, which although in field when the earlier suit for grant of injunction was filed was not challenged. Further, the said suit was subsequently withdrawn without seeking permission to file a fresh one. Thus, both the provisions, i.e., Order II, Rule 2, C.P.C. as also Order XXIII, Rule 1(3), C.P.C were fully attracted to the case of the petitioner as rightly held by two Courts below. No case for interference is made out. The petition is accordingly dismissed and leave is refused."

7. Learned counsel for the petitioner argued that the previous suit bearing No. 07 of 2014 was withdrawn by petitioner's counsel without permission of the petitioner and he never authorized his counsel to withdraw the suit and such withdrawal of the suit by petitioner's counsel was based on fraud and was result of misrepresentation. Be that as it may, the petitioner is held at liberty to file an application under Section 12(2), C.P.C. before the learned Civil Judge-VII to challenge the withdrawal of Civil Suit No. 60 of 2014. In view of the above and as per the dictum laid down by the Hon'ble Supreme Court no illegality has been committed by the revisional court while passing the impugned order. For the above reasons the constitutional petition is dismissed. MQ/201/Bal. Petition dismissed.