2023 PLP 1732 (CLC)

DR. KHURSHID IQBAL, J.

By this petition under Article 199 of the Constitution, Amir Sohail (the petitioner) set off another round of litigation over the issue of his appointment as a Primary School Teacher (PST, BPS-12). He asserts his right of employment firstly, being a resident of Arra village in the Union Council of Kotla Saidan in Tehsil and District, Dera Ismail Khan (DIK); and secondly, having the requisite educational qualification for such a position. He alleges that he has obtained his BS degree in Botany.

2. We have heard Mr. Hidayatullah Mallana, learned counsel for the petitioner and Malik Muhammad Asad, learned Addl: A.G., representing the respondents and perused the record.

3. The petitioner presented his application for appointment to the District Education Officer (Male) (respondent # 3) in response to an advertisement that was floated for appointment to the position of the PST. He appeared for the test conducted by the EATA. He obtained 57 marks in the test. He states that pursuant to his success in the test, his appointment could have been proposed in any school of his Union Council Kotla Saidan, but the respondent # 3 asked him to show his old Computerized National Identity Card (CNIC). It was here that his difficulty started. He professes that there is no doubt in his being a resident of the Kotla Saidan Union Council, but in the record of the NADRA, he was mistakenly shown as a permanent resident of Union Council Zindani. He adds that his address has been corrected in the NADRA record now. He didn't annex any document to support his contention. However, he annexed a copy of a Token (bearing # 1239) of the NADRA Registration Centre. The Token shows that he approached Centre on 28/12/2021.

4. The appointment in question is made under section 3 of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 (Act 2011). According to this provision, appointment to PST (amongst others) shall be on basis of Union Council of which a candidate must be a permanent resident as per his/her CNIC and domicile. The question before us, however, is not that of appointment. The moot point cropped up during the arguments is that the petitioner earlier instituted a WP # 553-D/2022. He withdrew that petition on 25/10/2022 which was, therefore, dismissed. He has disclosed this fact in paragraph # 9 of his instant petition, stating that: During the pendency of said writ petition the respondents ensured the petitioner that they are verifying the CNIC of the petitioner from NADRA and if the petitioner withdraws the writ petition then the respondents will redress the grievance of petitioner. The petitioner upon the assurance of respondent withdraw the writ petition but after verification of the CNIC of the petitioner the respondent did not comply their commitment and petitioner is still deprived of his valuable rights, hence, this instant writ petition is being filed.

5. Be that as it may. The order dated 25/10/2022 of withdrawal of this court doesn't support his contention. It reads: At the very inception of proceedings, learned counsel for the petitioner stated that he is under instruction from his client not to press this petition and requested for withdrawal of the same [; dismissed being not pressed.

6. Needless to say, a writ petition under Article 199 of the Constitution is procedurally governed under the Code of Civil Procedure, 1908 (C.P.C.). Hence, we are to determine whether the instant petition is maintainable. We may refer the relevant provisions of the C.P.C.

12. Bar to further suit.

(1) Where... It follows that the suits covered by Order II, Rule 2; Order IX, Rule 9; Order XXII, Rule 9; and, Order XXIII, rule. The last mentioned rule, being directly relevant here is reproduced as under:

7. There is sufficient case law on withdrawal simpliciter and bar on institution of fresh suit. It would be helpful to discus certain judicial opinions here. In Hashim Khan v. National Bank of Pakistan (PLD 2001 Supreme Court 325), the petitioner had filed a civil suit for the recovery of certain money allegedly misappropriated by an employee of the respondent-Bank. The suit was decreed ex parte. On an appeal, the High Court set aside the ex parte decree and remanded the case. During the proceedings after remand, the parties patched up the matter. The appellant agreed to receive some portion of the money. As a consequence of the compromise, the suit of the appellant for the remaining amount was withdrawn. Subsequently, he filed a fresh suit for recovery of certain other portion of the money with interest at the prevailing bank rate. The respondent-Bank contested the suit. The trial Court decreed the suit. The High Court set aside the decree on appeal. It was argued before the Supreme Court on behalf of the appellant that the subsequent suit for another amount with interest constituted a fresh cause of action, as such, Order XXIII, Rules 1(3) and 2, C.P.C., were not applicable in the case. The honourable Court ruled that: The withdrawal order passed by the Court mentioned hereinabove further shows that withdrawal simpliciter was without granting permission to file a fresh suit. Under the circumstances, such withdrawal under the above mentioned orders debars institution of any proceedings concerning such matter or part thereof [page 331].

8. Another case in which withdrawal simpliciter was considered as an issue is Muhammad Yar v. Muhammad Amin (2013 SCMR 464 [Supreme Court of Pakistan]. In this case, the respondent's claim of pre-emption on the basis of tenancy succeeded before the Revenue Officer. The petitioner (vendees) filed appeal which was dismissed, followed by revision before the Board of Revenue, which, too, met the same fate. The orders of the Revenue forums were challenged in a civil suit. An application for withdrawal was allowed so as enable the petitioner challenge the concurrent findings of the revenue officers before the High Court in a writ petition. One key question raised before the High Court was the effect of withdrawal simplicitor. The Court elaborated the text of the law laid down in Order XXIII, Rule 1, C.P.C., in the following words: From the clear language of the above, it is vivid and manifest that the noted rule mainly compromises of two parties; 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[.].

9. What may be seen of greater interest are the court's observations of the words "dismissed as withdrawn" in an order. As these words were also used by this Court in its order dated 25/10/2022, reproduced in paragraph # 5, above, it would be pertinent to study the judgment in greater detail. The honourable Court reviewed the dicta enunciated in the cases S. Nisar Ali v. Feroze Din Rana and another (1969 SCMR 933); Tehsil Council Rajanpur through Nazim v. Additional District Judge Rajanpur and 11 others (2005 MLD 1597) and Karim Gul and another v. Shahzad Gul and another (1970 SCMR 141).

10. From the above referred cases, the Court concluded that firstly, if a request for permission to file a fresh suit is accompanied with a request for withdrawal or abandonment of claim or a part thereof, the Court has the authority within the purview of sub-rule 2(a)(b) "to either decline such request or allow the permission." Secondly, in the event of refusal, the dismissal simpliciter should not be ordered, but the request for permission alone should be declined, which would mean that the suit shall continue. Thirdly, and more importantly, it would be problematic "if the request is not declined in express and clear words, yet the suit is 'dismissed as withdrawn' without recording any reasons [...]." It seems worth mentioning here that the august Court has eloquently advised the courts that such an order would be bad for being silent on giving reasons and would be more amenable to be put at naught if assailed; though would become final if not challenged. Fourthly, and finally, for the sake of safe administration of justice, such an order would be deemed and implied that the Court has found it fit for permission to file a fresh suit. We would emphasize here that there must be a request for permission to bring a fresh suit. In other words, where no such request was made, the withdrawal would be simpliciter alone, with no room for implied permission. It is worth mentioning that in the instant case, the petitioner did not withdraw his writ petition with permission to bring afresh one.

11. Before inching forward to conclude the discussion, it may said as a final word that it is the bounden duty of the court to reject the plaint if it is liable to be rejected, including, most particularly, being barred by law, as the point is in the case in hand. This is clear from the plain reading of the text of the law contained in Order VII, R, 11, C.P.C. However, it would be heartening to refer to, for example, two case: Burmah Eastern Ltd. v. Burmah Eastern Employees' Union (PLD 1976 Dacca 190) and Raja Ali Shan v. Messrs Essem Hotel Limited and others (2007 SCMR 741).

12. Consequent upon the above discussion, we have reached to the conclusion that the petitioner is precluded from instituting the instant fresh petition in respect of the same subject-matter (appointment as a PST). The instant petition is thus found as not maintainable. It stands dismissed. MQ/139/P Petition dismissed.