2021 C L C 1282
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
MOHAMMAD IQBAL ----Petitioner
Versus
MOHAMMAD HUSSAIN and 3 others ----Respondents
Constitutional Petition No.1313 of 2018, decided on 29th June, 2020.
(a) Civil Procedure Code (V of 1908) ---
----O.XXIII, R.1(3) & O.VII, R.11--- Specific Relief Act (I of 1877), Ss.42, 12 & 54---Suit
for declaration, possession and permanent injunction---Institution of second suit when
previous suit was withdrawn unconditionally--- Rejection of plaint of subsequent suit ---
Scope ---Held, that when there was total withdrawal of the suit then such suit was dismissed
as withdrawn and was finally disposed of, bringing an end to the litigation under O.XXIII, R.1(3) of Civil Procedure Code, 1908---No subsequent suit (for declaration, possession and permanent injunction) in respect of same cause of action, between the same parties, could be filed ---No illegality or irregularity was found in the impugned order passed by the Appellate
Court reject ing the plaint of second suit filed by the plaintiff ---Constitutional petition was
dismissed, in circumstance.
Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325 ref.
(b) Civil Procedure Code (V of 1908) ---
----S.12(2) & O.XXIII R.1---Withdrawal of previous suit unconditionally through counsel ---
Scope ---Contention of the petitioner/plaintiff was that the previous suit was withdrawn by
his counsel without his permission/authority and such withdrawal of the suit by his counsel was based on fraud and r esult of misrepresentation---Held, that the petitioner/plaintiff was at
liberty to file an application under S.12(2), Civil Procedure Code, 1908 before the Civil Court to challenge the withdrawal of the said previous suit ---No illegality or irregularity wa s
found in the impugned order passed by the Appellate Court, rejecting the plaint of second suit filed by the plaintiff ---Constitutional petition was dismissed, in circumstances.
Muhammad Hassan Mengal for Petitioner.
Muhammad Ilyas Mughal for Responde nt No.1.
Abdul Latif Kakar, A.A.G along with Hidayatullah, Law Officer Health Department
Government of Balochistan for the State.
Date of hearing: 23rd June, 2020.
JUDGMENT
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, recov ery 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 mutati on 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 responde nt 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 Sec tion 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 pe titioner 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 coun sel 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 fo r 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 fi le 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 or iginal
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 fi led 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, t hat 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 learn ed 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, bec ause 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 t hrough 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., Orde r 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 Sui t
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.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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