1991 PLP 571 (MLD)

3. Mr. Muhammad Aslam Khan, Advocate on behalf of the petitioner contended that the order of the Court dismissing the suit as withdrawn was not a bar to the institution of a fresh suit on the same cause of action, inasmuch as under Order 23 Rule .1 C.P.C. when the suit is withdrawn there is an implied permission for institution of a fresh suit. In support of the contention, reliance was placed on the following author, (1) Moula Bakhsh v. Muhammad Zahid etc PLD 1990 SC 596. (2) Karim Gul and another v. Shahzad Gul and another PLD 1968 Peshawar 134 and (3) Pakistan Industrial Dev. Corporation v. Pakistan -through Secretary, Ministry of Finance, Islamabad and another PLD 1984 Karachi 1.

4. S. Safdar Hussain Shah Bukhari, Advocate representing respondent No.l herein *in reply submitted that since the - suit was withdrawn, therefore, plaintiff/petitioner was precluded to bring the fresh suit. Reliance was placed on Mir Zaman v. Mst. Begum Jan and 11 others PLD 1983 Peshawar

100. Learned counsel for the respondent after making reference to the statement of the petitioner recorded by the lower Court on 21-5-1986 that "matter having been compromised his suit may be dismissed", contended that the petitioner never sought the permission of the Court to bring fresh suit. He was, therefore, of the view that on the strength of the ruling of the Peshawar High Court cited by him; the petitioner was estoppel to bring the fresh suit. Learned counsel for the petitioner controverted the argument; of the respondent's counsel that the petitioner had not asked for permission of the Court to bring a fresh suit and referred to the contents of the application dated 21-5-1986 reserving the right to bring a fresh suit if need be.

5. I have given my careful consideration to the respective contentions of the learned counsel for the parties and have also perused the case-law cited at the bar. The question involved in this revision petition has been resolved by the august Supreme Court in the recently reported decision of Moula Bakhsh v. Muhammad Zahid and others PLD 1.990 SC 596, but the fact of-the matter is that it still nourishes the minds of the Lawyers who, in my humble opinion, do not observe the procedure laid down in Order 23 Rule 1, C.P.C. nor the Courts seized of the job are careful in observing the procedure.

6. The ratio of the Supreme Court decision in the case of Moula Bakhsh v. Muhammad Zahid PLD 1990 SC 596 is that Court cannot at the same time allow to withdraw suit and refuse permission to institute fresh suit. It may be mentioned here that in that case District Court allowed the plaintiff' to withdraw from the suit but no order was passed qua the prayer for bringing fresh suit. This order of District Court was challenged in revision before the High Court and the High Court held that suit did not suffer from any jurisdictional defect whereby same could reasonably fail on technical grounds for granting permission for filing fresh suit. The High Court, therefore, maintained the impugned order of the District Court, The contention raised by the learned counsel before the Supreme Court was that if as per observation of the High Court there was no technical defect, then the District Court could and should have refused the withdrawal of the suit/appeal and could have decided the case on merits. Learned counsel, therefore, contended that when the permission to withdraw the suit was granted, it was necessary to grant permission to refile the suit. The arguments advanced before the Supreme Court were found to have the support of a case already decided by the august Supreme Court reported as Karim Gul v. Shahzad Gul and another 1970 SCMR 141-The question having been resolved in Karim Gul's case, the august Supreme Court in the case of Moula Bakhsh Supra allowing the petitioner/plaintiff to withdraw and refile fresh suit observed as under: -- "In this case the High Court, it appears was not properly assisted. If the two judgments of this Court in the case of the Haji Abdur Rashid Sowdagar and Karim Gul and another would have been cited the result would have been different. Faced with the aforestated situation the learned counsel for the caveator remained unable to show that the petitioner cannot succeed in this matter for the afore discussed reasons. We, accordingly, while converting this petition into appeal allow the same with the result that the application made by the petitioner/plaintiff on 11-7-1988 for withdrawal and refiling of the suit stands allowed. The order of the District Judge dated 11-7-1988 before the High Court would thus stand modified mutatis mutandis as including therein the permission to the petitioner/plaintiff to refile the suit." Thus it will be seen that mainstay of the decision was the base of Haji Abdur Rashid Sowdagar v. S. M. Lalita Roy and others PLD 1959 S C (Pak.)

287. It would be of advantage to reproduce hereunder the observations made by his Lordship of the Supreme Court as that would help us in resolving the issue in this revision petition: -- "Where a plaintiff to whom a permission to institute a fresh suit was given does not comply with the conditions on which he obtained the, permission he cannot be deemed to have withdrawn his suit under sub-rule (1) of rule 1 of Order XXIII of the Civil Procedure Code, 1908 with the consequence that he is so precluded by sub-rule (3) of rule 1 of Order XXIII from instituting a fresh suit. No such consequence is stated in sub-rule (2), rule 1 of the Order XXIII, as following from the with drawal of the suit and not complying with conditions on which permission to withdraw was given. Nor is it correct that since 'the conditions on which the permission to institute a fresh suit was given has not been complied with the original suit must be deemed to be pending. The withdrawal is complete the moment an order to that effect is recorded and the, right to bring a fresh suit follows from the withdrawal so permitted. If any of the terms on which permission to withdraw with liberty to institute a fresh 'suit was given is not fulfilled the consequence would be that unless the condition is complied with there is no proper suit before the Court. In such a case the defendant is entitled and the Court has the power to demand that if the plaintiff wishes to proceed with suit he must comply with the terms on which permission to withdraw was given. And leaving the question of limitation aside, the plaintiff may at any time comply with the terms and on proof that he has so complied may demand the Court to proceed with the suit. The order of dismissal of the suit can be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone bona fide delays, omissions etc." The observations of the Supreme Court indicate that at the time when application for withdrawal with, permission to bring fresh suit is submitted the Court has to pass a specific order to be construed subsequently when the fresh suit is instituted. In the instant case the suit was dismissed as withdrawn, because plaintiff-petitioner stated so in his statement recorded on 21-5-1986. He did not seek permission of the Court to bring fresh suit, nor the Court permitted him to bring fresh suit by putting some condition. Hence application of sub-rule (1) of Rule 1 of Order XXIII is out of question in this case. The contention of the learned counsel for the petitioner that right to bring fresh suit follows from the withdrawal so permitted, is devoid of force when considered in view of the conduct of the petitioner/plaintiff. The record would show that the petitioner had brought the previous suit on 18-2-1984 for permanent injunction against the defendant-respondent No.l that he be restrained from interfering in his possession of the suit properly, a shrine, knot/ as "Doda Khaqqani Wale where he was performing the duties of "Mutawalf" having obtained the rights from the father of respondent No.l as per agreement deed dated 26-7-1979. This suit was dismissed as withdrawn on 26-6-1986. On 6-12-1986 the respondent No.l applied to the Rent Controller for ejectment of the petitioner from the suit property under the Rent Restriction Ordinance, 1959. The order of ejectment was passed against the petitioner on 11-1-1990 which was upheld by the District Judge and writ filed in the High Court to challenge the order was dismissed on 12-11-1990. The petitioner had also instituted declaratory suit on 15-2-1989. The trial Court rejected the plaint under Order 7, Rule 11, C.P.C. on 3-5-1989. This order was upheld by the learned District Judge vide impugned order dated 30-10-1989. The petitioner nowhere stuck to one position. How then we can apply the provision of sub-rule (2) of Rule 1 of Order XXIII, C.P.C. The case-law cited by the learned counsel for the petitioner is, therefore, of no help to him. The Supreme Court ruling reported in PLD 1990 SC 596 sets out a principle that withdrawal of the suit under sub-rule (2) of Rule- 1, Order XXIII, C.P.C. is not a bar to the institution of fresh suit even though no permission is granted to file the fresh suit. The petitioner herein withdrew from the previous suit not because he wanted to remove any formal defect but because the dispute was settled through a private compromise. Thus it is not correct to say that suit was withdrawn under sub-rule (2) of Rule 1 of Order XXIII, C.P.C. so as to apply the principle laid down by the Supreme Court, in, the ruling reported in PLD 1990 SC

596. In fact the case reported in PLD 1983 Peshawar 100 is applicable to the facts of the present case, wherein it is held that the suit withdrawn on admission or representation of the plaintiff amounts to estoppel and is binding on him.

8. Learned counsel for the petitioner also relied on the case Karim Gul and another v. Shahzad Gul and others PL.D 1968 Peshawar 134 which is again of no assistance to .him. The dictum laid down is as under: -- "After considering the cases referred to at the Bar by the learned counsel for both sides, as well as the language and the scheme of the various sub ?rules of rule I of Order XXIII, I am clearly of the opinion that the situations envisaged by sub-rules (1) and (2) are distinct from each other; and if an application is made under sub-rule (2) for permission to withdraw from a suit and to institute a fresh one in respect of the same subject-matter the Court must treat this application as an indivisible one and it must either reject or accept both the prayers contained in such an application. It is not open to the Court to allow the withdrawal of the suit but refuse permission to institute a fresh suit in respect of the same subject-matter or part of the claim. That result can easily be achieved by the plaintiff by unilateral action under sub-rule (1) and he need not make any application to the Court under sub-rule,(2). The application is made precisely for the purpose of getting an exemption from the operation of sub-rule (3) It is not the petitioner's case that had "made an application under sub-rule (2). Had it been so then he could say that the Court should have treated his application as an indivisible one, and while granting permission to withdraw the suit the Court could not refuse permission to institute a fresh suit. In fact the petitioner withdrew from the suit because matter was settled through private compromise. The fresh suit was, therefore, not maintainable. In the case of Pakistan Industrial Corporation v. Pakistan through Secretary, Ministry of Finance, Islamabad PLD 1984 Karachi

1. Scope of applicability of principle of res judieata under sub-rule?(3) of Rule of Order XXIII, C.P.C. to the constitutional petition was considered. The principle adopted was the same, as in the case of Haji Abdur Rashid Sowdagar Supra. I am, therefore of the view that this authority is not applicable to the facts of the present case. The conclusion I have been able to arrive at is that the petitioner withdrew from the earlier suit on the basis of compromise and the lower Courts have rightly rejected his plaint under Order 7, Rule 11, CY.C: in the subsequent suit filed by him, The Courts below in passing the impugned orders have, therefore, committed no illegality or material irregularity calling for interference by this Court under section 115 of the Code of Civil Procedure. Accordingly this revision petition is dismissed. Parties are left to bear their owns costs, A.A./1161 P??????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.