2022 C L C 1282
[Balochistan]
Before Rozi Khan Barrech, J
SHARAF -UD-DIN ----Petitioner
Versus
ABDUL WADOOD and 3 others ----Respondents
Civil Revision No.215 of 2019, decided on 13th September, 2021.
(a) Civil Procedure Code (V of 1908) ---
----O.XXIII, Rr.1 & 2---"Formal defect" and "sufficient reason"--- Scope ---Suit for
declaration and permanent injunction--- Petitioner running a school had challenged
construction of shops on the land adjacent to his school ---Written statement was submitted
by defendants ---Petitioner filed application for withdrawal of plaint which was accepted by
Trial Court but dismissed by appellate Court ---Validity ---No formal defect was pointed out
by Trial Court in the suit filed by plaintiff/petitioner ---Before allowin g withdrawal of
application, satisfaction of Court regarding formal defect/other sufficient grounds was
necessary ---Local commission was appointed who had submitted report before such
application from plaintiff ---Allowing application would cause harm/prejudice to
defendants/respondents and would put them in disadvantageous position---Application was silent as to any justification/reasons or formal defect which ought to be removed by filing suit afresh and were not possible to be introduced by way of amendme nt---Petitioner's
application for amendment in plaint had already been dismissed by trial Court ---Revision
petition was dismissed accordingly.
(b) Civil Procedure Code (V of 1908) ---
----O.XXIII, Rr. 1 & 2---Withdrawal of suit with permission to institute fresh suit ---
Privilege ---"Sufficient grounds" ---Scope ---Plaintiff had absolute privilege/prerogative to
withdraw his suit and /or abandon his claim/part thereof against all/any of defendants at any
stage of proceeding---Where Plaintiff had exercised such privilege, he would be precluded from instituting new suit on basis of same cause of action qua same subject matter against same defendant ---Sub- rule (2) was exception to sub -rules (1) and (3) that plaintiff would be
obliged to seek permission of Court if he wanted to file new suit after withdrawal of the first
suit---Such permission of Court should not be granted as a matter of right/course/routine ---
Conscious of Court should be satisfied that if permission was not given, the suit would fail on account of any formal defect ---Other sufficient grounds were also there for allowing
withdrawal of suit with permission to institute fresh suit---No hard and fast criteria could be laid down in respect of "sufficient grounds" ---Plaintiff must elucidate/explain to Cou rt the
reason(s) for such withdrawal justifying the permission of Court ---Court was duty- bound to
advert to reasons propounded by plaintiff and to pass speaking order assigning reasons for its
conclusion meeting the objective requirement of rule of 'satisf action'--- Order must spell out
the objectivity test of satisfaction, so that the same could be gauged/judged that request of plaintiff for withdrawal was not tainted with oblique/mala fide motive; was not meant to cause harm/prejudice to defendant and put him in disadvantageous position; not motivated to
misuse the authority of Court and abuse the process of law.
Muhammad Yar through L.Rs and others v. Muhammad Amin through L.Rs and
others 2013 SCMR 464; Haji Muhammad Boota and others PLD 2003 SC 979 and Salma
Khalil and three others v. Rashida Siddique and another 2000 CLC 260 rel.
Muhammad Abbas Kakar for Petitioner.
Azmatullah Achakzai for Respondents Nos.1 and 2.
Ala-ud-Din Kakar, Assistant Advocate General ("AAG") for Respondents Nos.3 and
4.
Date of hearing: 10th September, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ----This Civil Revision Petition in terms of section 115
of The Code of Civil Procedure (V of 1908) (hereinafter referred to as ("C.P.C.") arises out
of order dated 18.05.2019 (hereinafter "the impugned Order") passed by learned Additional
District Judge, Kuchlak (hereinafter "the appellate Court") wherein the appeal filed under
section 96, C.P.C. by the respondents Nos.1 and 2 was accepted and the application under Order XXIII, Rules 1 and 2, C.P.C., filed by the petitioner was dismissed.
2. Epitomized facts necessary for adjudication of the instant petition are that the
petitioner/plaintiff filed a suit for declaration and permanent injunction before the learned Judicial Magist rate/Civil Judge, Kuchlak (hereinafter "the trial court"), with the averments
that the petitioner is the owner in possession of the land bearing Khasra No.828 and 4 Qitta, measuring 14 Rod 0 Pole and 0 Rod 36 Poles, situated at Mahal Viala Samali, Mouza Samali, Tappa Kuchlak, in pursuance of mutation Nos.25 and 116 whereof a school has been
constructed by the petitioner and handed over to the Iqra Ahsan- ul-Altaf English Educational
Academy. It is further averred in the plaint that the school in question was peacefully
running over the property in question but meanwhile the respondents Nos.1 and 2 started occupying the adjacent land on eastern side of the property in question by way of constructing four shops thereon, despite the fact that they have no concer n or connection
with the property in question, nor have any documents or authority with them.
3. The respondents Nos.1 and 2 resisted the suit, being the defendants. While submitting
their written statements, they controverted the assertions contained in the plaint.
4. When the suit of the petitioner was in progress the petitioner filed an application
under Order XXIII, Rules 1 and 2, C.P.C. for withdrawal of the plaint with permission to file
a fresh one. The said application was contested by the defendant s/respondents Nos.1 and 2
after filing a rejoinder of the same. However, the learned trial court, after hearing the parties, allowed the application of the petitioner on 25.02.2019.
Being aggrieved and dissatisfied from the impugned order dated 25.02.201 9, the
respondents filed a civil appeal before the learned appellate court, which was accepted, and the application filed by the petitioner under Order XXIII, Rules 1 and 2, C.P.C. before the trial court was dismissed on 18.05.2019, whereafter the instant revision petition has been filed.
5. I have heard the learned counsel for the parties and have gone with the material
available on record with their assistance.
6. The provision about the withdrawal of the suit are postulated under Order XXIII, Rule
1, C.P .C., which are reproduced as under -
"(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) Whe re 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 for the 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 afresh suit in respect of the subject- matter of
such suit or such part of a claim.
(3) Where the plaintiff withdra w 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 o f the claim.
Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others."
7. From the clear language of the above, it is vivid and manifest that the above rule
mainly compr ises of two parts; 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. A nd where the
plaintiff has exercised his noted privilege, he shall be precluded from instituting a new 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, whic h 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 new suit after the withdrawal of his pending suit on the basis of the same ca use 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;
however such permission shall not be granted as a matter of right or as a matter of course/routine, rather t he judicial conscious of the Court should be satisfied that, if the
permission is not given the said suit shall fail on account of any formal defect, there are other sufficient grounds for allowing the plaintiff to withdraw the suit with permission to inst itute
a fresh suit; in respect of "sufficient grounds" no hard and fast criteria can be laid down, and
it depends upon the facts of each case, whether a case in that regard is made out or not.
However, it is the legal requirement that where the plaintiff i s asking for the permission of
the Court to file a fresh suit, in his request in that behalf, he must elucidate and explain to the Court the reason(s) for the withdrawal, justifying for the permission of the Court. Likewise, the Court, while allowing or di sallowing the permission, is duty- bound to advert to the
reasons propounded by the plaintiff and to pass a speaking order assigning reasons for its conclusion meeting the objective requirement of rule of 'satisfaction' as is envisaged by sub-rule (2). Where the Court allows the requisite permission, the order in that behalf must spell out the objectivity test of 'satisfaction' so that it can be gauged and judged that the request of the plaintiff for withdrawal was/is not tainted with an oblique and mala fid e motive; it is not
meant to cause harm and prejudice to the defendant(s) and put him in disadvantageous position; the requested not motivated to misuse the authority of the Court and abuse the process of law The above principle was authoritatively affirme d by the Hon'ble Supreme
Court in the case titled as Muhammad Yar (deceased) through L.Rs and others v. Muhammad Amin (deceased) through L.Rs and others (2013 SCMR 464).
8. An identical point came under consideration before the Hon'ble Supreme Court of
Pakistan in a case titled Haji Muhammad Boota and others v. Member (Revenue) Board of
Revenue Punjab and others (PLD 2003 SC 979). At page 991 of the report, it was held as
under: -
"It was further held in the above case that the withdrawal would not be allow ed if it
results in perpetuating a fraud or injustice. The Court may in such circumstances decline the petitioner to withdraw the suit. The Court may also in appropriate cases where it comes to the conclusion that, the purpose of withdrawal of proceeding i s
only to prevent the Court from passing an order undoing a wrong or an injustice done to party or the withdrawal would deprive the Government or a public functionary to receive or recover the public dues, or the withdrawal would otherwise defeat the ends of justice, decline the prayer for withdrawal".
9. The point also came under consideration before the Lahore High Court, in the case of
Salma Khalil and 3 others v. Rashida Siddique and another (2000 CLC 260). At page 262 of the report, it was held as unde r:-
"I have considered the submissions made by the learned counsel for the parties. I have noticed that while granting permission to respondent No. 1 to file a fresh suit the learned first appellate Court did not specify the formal defect and permission w as
granted to respondent No.1 to file a fresh suit for declaration. The contention of the learned counsel for the respondents that in the first suit a formal declaration as to the easement rights was not claimed which according to him amounted to a formal defect has no merit either. It is the substance rather than the form which should be looked
into to determine the nature of relief claimed by a plaintiff in a suit. In paras 4 of the
plaint the respondents had clearly pleaded easement rights on account of prescription. Further, the suit was filed in 1992 and was decided on 8- 12-1996 after parties had led
the entire evidence and the merits of the claims of the parties were duly considered and adjudicated. The respondents could not, therefore, be permitted to take another
chance in, the from of a declaratory suit".
10. A reading of the above mentioned statutory law and precedents makes it abundantly
clear that a suit can be withdrawn on the ground of any formal defect or other sufficient grounds. No formal def ect was pointed out by the learned trial court in the suit filed by the
plaintiff/petitioner. Before allowing the withdrawal application, the satisfaction of the Court
regarding formal defect or other sufficient grounds was necessary.
11. The petitioner filed an application under Order XXIII, Rules 1 and 2, C.P.C. before
the learned trial court and no formal defect was pointed in the said application, which is
reproduced for ready reference.
"2. That at the time of filing of instant suit, the applicant/plaintiff committed some clerical and technical mistake in his suit and not mentioned 2000 sqft through agreement which illegally occupied by respondent by constructing shops. In this regard the plaintiff/applicant moved an application before this Hon'ble Court for amendment of this suit on 20.10.2018. However, this Hon'ble Court rejected the instant application with observation that the nature and character of the suit will be changed if amendment is allowed. Such defect amounts to formal defect which can only be cured through filing of fresh suit, hence this application".
12. After perusal of the record it further reveals that the local Commissioner was
appointed by the learned trial court who submitted his report. After submission of the report of the local commissioner, the petitioner/plaintiff filed an application under Order XXIII, Rules 1 and 2, C.P.C., for withdrawal of the suit with permission to file a fresh one with a new plea which caused harm and prejudice to the defendants/respondents and also put them in a disadvantageous position. The application moved for withdrawal of the suit with permission to file afresh one is completely silent as to any justification, reasons or formal defect which ought to be removed by filing afresh su it and were not possible to be introduced
by way of amendment and the application of the amendment which was filed by the petitioner/plaintiff has already been dismissed by the trial court.
In view of the above discussion, no illegality or irregularity whatsoever has been
committed by the appellate court; as such, the instant revision petition is meritless; therefore, the same is dismissed.
ZH/156/Bal. Revision dismissed.
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