1989L21 (PLP)

The petitioners have filed this revision petition whereby they have impugned the judgment and decree of Additional District Judge, Multan, dated 3‑1‑1982. The relevant facts necessary for the disposal of this revision are that the predecessor in‑interest of the petitioners filed a suit for permanent injunction restraining the respondents from interfering in his possession over the land and declaring him the absolute owner. The lower Court as per pleadings of the parties framed following, issues:‑‑ (1) Whether Haji Muhammad, the father of defendant No.l, was the owner of the suit land at the time of sanction of mutation No. 2 28 dated 17‑3‑1962? (2) Whether the suit land was given on adhlapi terms by said Haji Muhammad to the plaintiff? (3) Whether the suit is incorrectly valued for the purposes of court‑fee and jurisdiction? (4) Whether the description of suit land is not correct, if so, what is the correct description? (5) Whether the suit is time-barred? (6) Relief .

2. The parties led their respective evidence and the trial Court after hearing arguments proceeded to decree the suit vide judgment and decree dated 1st of October, 1973. The respondents filed an appeal in the Court of District Judge, Multan, which ultimately came up for disposal on the file of Mr. Muhammad Aslam, the then Additional District Judge, Multan. The appeal was fixed for 3rd January, 1982 when Syed Zafar Hussain, counsel for the petitioners alongwith Haq Nawaz petitioner No.l made a statement to the effect that the respondents have no objection to the appeal being accepted but they be allowed to withdraw the suit with permission to file a fresh suit on the same cause of action as there are some legal and technical defects. The lower appellate Court thereafter, recorded a statement of the learned counsel for the appellants and proceeded to accept the appeal and granted permission to the petitioners to file a fresh suit on the same cause of action subject to payment of Rs.50 as costs. This is the judgment and decree now subject‑matter of the present revision.

3. The petitioners reacted strongly against this and proceeded to file the present revision petition. It was pleaded that they have been defrauded, their learned counsel had no authority to make such statement and that the order is illegal because Additional District Judge has failed to act in accordance with law. The revision petition was admitted to regular hearing and notices issued to the respondents, who elected to contest this petition.

4. I have heard the learned counsel for the petitioners, who in support of the revision ,petition has submitted that their learned counsel had no authority to make the statement and the petitioners' main grievance is that the lower appellate Court proceeded in a most illegal and irresponsible manner while recording the statements of the counsel for the parties and proceeding accordingly without keeping in mind the requirements of law.

5. It is further added that there should have been application specifying the technical or legal defects and in its absence whole proceedings are vitiated. The learned counsel in this behalf has referred to P L D 1972 Lah. 290, P L D 1962 Lah. 476, P L D 1981 Pesh. 72, P L D 1966 Kar. 356, P L D 1965 Pesh. 127, P L D 1984 Lah. 230 and P L D 1984 AJK 1.

6. On the other hand the learned counsel for the respondents has argued that counsel had implied authority to make a statement and the parties are bound by the statement of their counsel. He in this behalf has referred to cases 1981 C L C 1350, 1988 C L C 142; AIR 1932 Lah.414, P L D 1962 Lah.95, 1985 C L C 72 and 1971 SCMR

634. It was submitted that the petitioners are estopped by their own conduct from agitating against the consent order.

7. I have given my anxious considerations to the arguments of the learned counsel for the petitioners and counter‑arguments of the learned counsel for the respondents. I need not to decide the points, whether the petitioners are bound by the statement of the learned counsel or whether they are victims of fraud or whether the petitioners are estopped by their own conduct to turn round and assail the order passed on their own representation, in view of the order I propose to make.

8. The main objection of the learned counsel for the petitioners is that neither there was any formal or legal defect in the plaint nor the statement recorded by the lower appellate Court was legally and factually correct. The learned counsel for the respondents has nothing to contradict this position. It is worthwhile to refer to Order XXIII, Rule 1, C.P.C. before proceedings any further. The relevant portion of the same reads as under:‑ "(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. _ (2) Where the Court is satisfied:‑ (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject‑matter of such suit or such part of a claim." It is clear that before the permission is granted, the plaintiff has to establish: ‑ Firstly,. that the suit is liable to fail on account of some formal defect; Secondly, there are otherwise sufficient grounds to allow the permission; and. Thirdly, the permission is to be granted on such terms as Court would deem fit.

9. In this case there is nothing in the statement of the learned counsel for the petitioner to indicate any formal defect or suggest any sufficient cause to grant permission to the plaintiffs to withdraw , the suit and file fresh suit on the same cause of action. There being no material on record to this effect, therefore, there was no question of satisfaction of the appellate Court. The order is completely silent on this point. In this behalf reference can be made to case of Ahmad Mian v. Malik Bahadur and 21 others P L D 1979 Note No.105 at p.78, wherein it was held that the permission to withdraw is not arbitrary and can only be granted on the grounds mentioned in the rule and the reasons should be specifically set out. This provision seems to have been enacted with a view that the litigants may not waste the time of the Courts for same cause of action again and again. This seems to be rationale behind this provision.

10. It seems that the lower appellate Court in its anxiety to dispose of one file did not keep in mind the legal provisions. It is good to decide the matters but it is all the way essential to decide the same in accordance with law. The causes are not to be decided in accordance with the whims of the parties but in accordance with law. It is the primary duty of the Court to decide a cause strictly in accordance with law. The lower appellate Court in this matter has utterly failed to keep cardinal principle of dispensation of justice in view.

11. In this matter not only the legal ingredients were lacking but on the other hand the petitioners also took up the position that there is no defect, whatsoever, and they are not desirous of withdrawing the suit. I have asked the learned counsel for the respondents to let me know the alleged defect which necessitated withdrawal of the suit. The learned counsel simply remarked that it was the desire of the plaintiffs, therefore, they must be knowing better.

12. This suit was instituted in 1970 and was decided by the trial Court on 1‑10‑1973. The respondents filed an appeal which remained pending for almost 9 years and outcome was the judgment which is subject‑matter of this revision. It was against the policy of law to grant such a permission at such a late stage. The lower appellate Court has exercised jurisdiction illegally and with material irregularity. I am fortified in my view by decision in the case of Ahmad Bakhsh v. Allah Bakhsh and another P L D 1962 Lah. 476, wherein it was held that allowing withdrawal of a suit on grounds which are not contemplated under Order XXIII, Rule 1 would be irregular exercise of the jurisdiction. The revision was accepted and case remanded.

13. I, therefore, have no option but to accept this revision and remand the case to the District Judge for decision of the appeal of the respondent in accordance with law. There is no order as to costs. The appeal should be decided within two months. A.A./H‑94/L Case remanded.