2023 PLP 541 (MLD)

SAFDAR SALEEM SHAHID, J.

The petitioners have filed this constitutional writ petition while assailing the order of the learned Civil Judge dated 24.04.2015 and order of learned Additional District Judge dated 27.05.2015, vide which, the application under section 151, C.P.C. was dismissed by the learned trial Court for restoration of suit and the revision petition filed was dismissed by the learned Additional District Judge against the same order.

2. Brief facts necessary for disposal of the writ petition are that the petitioners along with their late brother Pir Bakhsh filed a suit for declaration along with prayer of permanent injunction against respondent No.3 Ghulam Hussain in the Court of Civil Judge, Khanpur on 09.02.2009 alleging that the predecessor of the petitioners namely Buddha son of Nibahoo was owner in possession of agricultural property measuring 45-Kanal 11-Marla situated in different Khata of Dakhli Mouza, Kot Shahan, Tehsil Khanpur. After the death of predecessor, the petitioners became owner in possession of the said land being legal heirs. It was alleged that the registered sale deed dated 22.05.1976 allegedly made by predecessor in interest of the petitioners in favour of defendant which was entered at book No.1, page No.203 at serial No.839 in volume No.5 is fictitious, forged, fraudulent, illegal and inoperative on the rights of the petitioners and mutation No.75 sanctioned on 15.08.1990 is also illegal and inoperative. The respondent No.3 appeared and filed written statement. During the course of trial, the petitioner No.2 Nibahoo along with counsel of the petitioners appeared in Court and counsel for the petitioners made the statement on 28.10.2013 that since duplicate of lost Part Sarkar has been allowed, so, there is no need for the present suit. It was stated by counsel for the petitioners that for the time being he withdraws the suit and in case of emergence of the need, the suit would be filed again and with the statement. The Court on the statement of the petitioners, dismissed the suit as withdrawn. On 02.01.2014, the petitioners presented application under section 151, C.P.C. to the learned trial Court for restoration of the suit alleging therein that the suit withdrawn was not only consist on the impugned property which is part of the lost document of mutation, but some other property was also the part of the claim. So, regarding remaining claim, the decision should be made upon merit. Since in their statement of withdrawal, it has been mentioned that if the need arises, the petitioner/plaintiff would file a fresh suit. The application under section 151, C.P.C. was dismissed by the learned Civil Judge vide order dated 24.04.2015. Petitioners filed civil revision petition and the civil revision was dismissed by the learned Additional District Judge vide order dated 27.05.2015.

3. Counsel for the petitioners argued that both the learned trial Courts had not properly appreciated the legal aspect of the proposition. The statement was made regarding some part of the property and it was also mentioned in the statement that the petitioners would file the suit in case of the need. Therefore, the application under section 151, C.P.C. has been wrongly dismissed by the Court. The Court has not exercised its jurisdiction in accordance with law. Counsel argued that this was the right of the petitioners to withdraw the suit to the extent of the lost document. And on the availability of the same, the petitioners withdrew the suit to that extent.

4. Counsel for respondent No.3, on the other hand, resisted the arguments and argued that if the statement dated 28.10.2013 made by the petitioners and the counsel is perused, the application under section 151, C.P.C. is not maintainable. The petitioner has made the statement that in case of the need, they would file a fresh suit. Although, the permission by the Court was not given in the order for filing the fresh suit, but maximum the petitioners would have file a fresh suit in that regard in view of the statement made before the Court. The provision of section 151, C.P.C. is not applicable to present proposition. Even if the application filed by the petitioner is perused, it clearly speaks that it was withdrawal request, and this comes within the definition of Order XXIII, Rule 1, C.P.C. The suit was dismissed by the Court without mentioning the order for allowing the petitioners to file a fresh suit. Because the spirit of Order XXIII, Rule 1, C.P.C. is clear. The petitioners have not mentioned any defect in the suit that why they were withdrawing the suit. The only reason mentioned is that lost Part Sarkar is since sanctioned, therefore, the suit is withdrawn. Neither any specific defect is mentioned to file fresh suit, nor it has been requested the Court to give permission to file fresh suit. It was argued that the wisdom behind the law is that the parties cannot be left free to contest their matter for unlimited period. The withdrawal permission only can be given conditionally if the same is highlighted by the party and the Court after analyzing the reason mentioned by the party would allowed the party to withdraw the suit with permission to file a fresh suit. Both the Courts below has passed the order in accordance with law. The Court was competent to pass the order and there is no jurisdictional error.

5. Arguments heard. Record perused.

6. The petitioners filed the suit for declaration claiming themselves the owner in possession of the land mentioned in the plaint. The petitioner further challenging the mutation sanctioned in favour of respondent Ghulam Hussain. The suit was filed on 09.02.2009 where the registered sale deed dated 22.05.1976 and mutation No.75 sanctioned on 15.09.1980 had been challenged. During the course of proceedings on 28.10.2013, the petitioner No.3 Nibahoo son of Jam Buddha appeared before the Court along with his counsel Mr. Moin-ud-Din Qureshi Advocate and made the statement. Here is the proceedings of that very date i.e. 28.10.2013 which was pen down by the Court as under;- Thereafter, on 02.01.2014 after more than 02 months, the petitioners filed this application under section 151, C.P.C. where they mentioned the reason for withdrawal of the suit with the following version; "that the statement was made because of misunderstanding. Actually the statement of withdrawal of the suit was made to the extent of the property the "Part Sarkar", which was lost and not for the remaining property." It is noticed that this application under section 151, C.P.C. was filed through same counsel, who was present on the date, when statement was made for withdrawal of the suit. This counsel also signed the order sheet. The moot point necessary to be resolved in this proposition is;

1. Whether the matter of withdrawal of suit is covered under Order XXIII, Rule 1, C.P.C., or The provision of section 151, C.P.C. alone, is applicable to the present proposition? I would like to code Order XXIII, Rule 1, C.P.C.;-

1. Withdrawal of suit or abandonment of part of claim" (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 to institute a fresh suit subject-matter of a suit or part of a claim, 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. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Reliance is placed on case law reported as "Mrs. Afroz Shah and others v. Sabir Qureshi and others" (PLD 2010 Supreme Court 913), it was held; The provision of law as contained sub-rule (1) of Rule 1 of Order XXIII, C.P.C. are substantive as well as procedural. These provisions legislatively recognize the right and privilege innate in a plaintiff. He has undisputable, indefeasible and absolute right to file and to withdraw his suit "at any time". It is the privileged domain of the plaintiff to exclusively decide:- (i) To bring the suit and continue it; (ii) To withdraw the suit; (iii) To withdraw the suit unconditionally or conditionally; (iv) When to withdraw the suit; (v) Whether to withdraw part of the claim or whole of the claim in the suit; and (vi) Against which of the defendants to withdraw the suit in case of plurality of the defendants. The plaintiff thus enjoys the choice of the time and stage of withdrawal as well. A plaintiff is also vested with the right to partly withdraw his claim or wholly as against all or any of the defendants. Sub-rule (3), however, exposes him to two consequences (i) liability to pay costs if awarded and (ii) bar/preclusion to bring a fresh suit on the same cause of action/subject-matter. No other person or suit party or even the court has such a right or power to withdraw the suit or force a plaintiff to withdraw from the suit. It is in this respect that plaintiff has an unqualified absolute right. Attached with the absolute and unconditional right to withdraw the suit is the power to exercise such right. The right to withdraw is governed and regulated by the law. Exercise of such right is thus also to be regulated and governed by the principles of law. Expression "on such terms as it thinks fit", means an order after affording opportunity of hearing to the other party which is going to be effected by such permission of withdrawal of the suit. Accordingly the permission shall be contingent on such terms as the Court thinks fit as a natural corollary. Reliance is placed on case law reported as "Abdul Malik v. Muhammad Urfan and another" (1989 CLC 2363). It is necessary that notice is given to other party to see whether the application of withdrawal of suit do fall within the domain of this Rule. Merely recording of statement of plaintiff allowing withdrawal of suit with permission to file fresh suit on the basis of same cause of action on payment of cost is not sufficient and such an order is in violation of provision of Rule 1 of this Order, and as such not sustainable. Reliance is placed on case law reported as "Doctor Raza Muhammad Khan v. Principal, Ayub Medical College, Abbottabad and 3 others" (2004 CLC 1511). It is also to be considered whether it was date of hearing and other party was present on that date or joined the proceeding of recording the statement of the plaintiff for withdrawal of suit. It has been noticed that no application was filed for withdrawal of the suit. The order sheet annexed with the petition reflects that no person from the defendant side was present on that date i.e. 28.10.2013. They had been joining the proceedings of suit on all the previous dates. They had submitted the written statement, but neither the Court issued any notice to the respondent/defendant nor mentioned regarding their presence in the order sheet. Therefore, the provision of Order XXIII, Rule 1, C.P.C. will be applicable to this extent that the plaintiff was entitled to withdraw the suit. But the permission for filing fresh suit cannot be given under the circumstances when specific notice was not issued to the other side and they were not present before the Court.

7. The statement was made by Nibahoo plaintiff No.3 with his free consent in the company of his counsel. And this was not the stance of the petitioner that the statement was made due to some mistake or because of some coercion or any other technical reason. But specific reason mentioned in the application is that the statement was made due to some misunderstanding and the petitioners now wanted to get restored the suit. The provision of Order XXIII, Rule 1, C.P.C. clearly mentions that the plaintiff at any stage, can withdraw the suit. The suit can be withdrawn by the plaintiff conditionally or even unconditionally. But in case, if the petitioner wants to withdraw the suit conditionally on the basis of some reason for filing the fresh suit. Then the petitioner/plaintiff is bound to mention that defect in the earlier suit which he was going to withdraw otherwise simple withdrawal can be allowed by the Court at any stage. The spirit of section 151, C.P.C. is altogether different. No doubt the Court has the inherent powers to make such order as may be necessary for the ends of justice or to prevent the abuse of process of the Court. But for that the Court will have to mention the reasons for invoking the said provision of law. The Court can only exercise the inherent powers in case when there is no prohibition in law regarding its jurisdiction to exercise the inherent powers. Secondly, when there is express provision in Code, Court cannot exercise that authority to defeat or circumvent such express provision. Thirdly, expression "Court" in section 151, C.P.C. means each Civil Court in which the lis is pending. Inherit jurisdiction of Court can be invoked when there is no other specific provision to deal with the issue. In this proposition, the provision of Order XXIII, Rule 1, C.P.C. is there which is applicable to the present proposition. The statement of the counsel and petitioner No.2 is there. Where petitioner No.2 signed over the statement, he made before the Court, so there is nothing to consider that there could be any mistake in the statement regarding its understanding. The Court pen down the statement which was signed by petitioner No.2, his counsel also signed the same in token of correctness of the statement, the petitioner No.2 made before the Court. So, maximum application of provision of Order XXIII, Rules 1 and 2, C.P.C. was applicable to the proposition. The application of section 151, C.P.C. was alien to the said proposition. The learned Courts below has correctly decided the proposition. The learned trial Court decided the application in view of the statement of the petitioners, whereas, the revisional Court has rightly decided the matter that there was no illegality or irregularity in the order. The petitioners are failed to make a case of writ jurisdiction in this regard because they have not availed the legal remedy available to them under the law.

8. In view of what has been discussed above, instant writ petition being devoid of force stands dismissed. ZH/J-4/L Petition dismissed.