' The petitioner is aggrieved from the judgment passed by the lower Appellate Court of Additional District Judge/Izafi Zilla Qazi, Lower Dir, dated 30-5-2003 whereby decree passed by Senior Civil Judge/Aala Illaqa Qazi, Timergara, dated 24-2-2003 was set aside.
2. The respondent No,1 filed a declaratory suit against the petitioner and respondent No,2 her husband bearing No,182/1 of 2002. In the averments of plaint it was stated that the suit-land was given to her in lieu of dower through execution of deed, dated 7-2-1962. Though the plaintiff was in possession of the suit-land but through her husband who regularly used to pay her share in produce. In the year 2001 she came to know that her husband has struck a bargain with the petitioner which is illegal without any authority against Shariah and ineffective upon the rights of plaintiff. The suit was resisted by the petitioner mainly on the ground that earlier suit of the petitioner for the same subject-matter and cause of action was unconditionally withdrawn and her suit was dismissed as withdrawn on 21-9-2001. The suit in hand was contended to be hit by the provision contained in Order XXIII, rule 1(3) of the C.P.C. The objection regarding maintainability of the suit was argued by the learned counsel for the parties and the trial Court/Senior Civil Judge rejected the suit being not maintainable after placing reliance on PLD 1998 Lah.
441.
3. The respondent No,1 feeling aggrieved from the rejecting of her plaint, preferred an appeal to the Court of District Judge which was entrusted for disposal to the Additional District Judge/Izafi Zilla Qazi and accepted vide impugned order, dated 30-5-2003 and the matter was sent back to the trial Court for adjudication.
4. I have heard the arguments of the learned counsel for the parties but the judgment was reserved for today at the request of learned counsel for respondent No,1 as he wants to produce some case-laws on the subject-matter.
5. Learned counsel for the parties argued the case mainly on legal premises as to whether the suit of respondent No,1 filed on 6-7-2002 was maintainable in view of the admitted fact that earlier suit of the plaintiff was dismissed as withdrawn without obtaining permission to file a fresh suit if need arises. The learned counsel for the petitioner relied on the provision contained in Order XXIII, rule 1(3) of the C.P.C. Which reads as under:-- ' "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 institution any fresh suit in respect of such subject-matter or such part of the claim."
' He referred to application of the plaintiff in the previous suit which reveals that the suit was requested to be withdrawn as the plaintiff had already approached the Civil Court under section 12(2) of the C.P.C. Against the decree passed in favour of petitioner. No permission for filing a fresh suit if need arises was sought. Learned counsel also relied on Karamat Ali Khan and another v.
Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30, Messrs Sindh Engineering (Pvt.) Ltd. v. O.T.I.S. Elevator Company and 3 others 2000 CLC 1524, Ghulam Rasool and 12 others v. Shana and 12 others 2001 MLD 661, Abdul Malik v. Muhammad Irfan 1989 CLC 2363 and State v. Mansoor-ur-Rehman Khan Afridi PLD 2000 Lah.
90.
6. The learned counsel for respondent No,1 contended that the earlier suit of the plaintiff- respondent No,1 though regarding the same subject-matter and cause of action but it was not adjudicated upon and was requested to be withdrawn as there was already pending adjudication her application under section 12(2) where the decree in a suit between petitioner and respondent No,2 was challenged on the ground of fraud and misrepresentation and two proceedings for the same relief could not run simultaneously and after dismissal of her application under section 12(2), C.P.C., the suit in hand was competent and she fully supported the impugned order of the lower Appellate Court. In support of his submission he relied on Naseer Ahmad Shaikh v. Lt.-Col. Munawar Hussain Shah 2000 CLC 1342 and Messrs Qasim International Container Terminal Pakistan Limited v. Federation of Pakistan and 7 others 1999 CLC 2065.
7. This is undisputed fact that earlier suit of the nlaintiffrespondent No,1 was dismissed as withdrawn after recording the statement of plaintiff and without seeking permission for filing a fresh suit by order, dated 15-10-2001. This is also undisputed fact that in the instant suit relief sought is the same which was sought in the earlier suit instituted on 8-2-2001 and withdrawn on 25-10- 2001. Withdrawal of suit is governed by Order XXIII of the C.P.C. Under sub-rule (2) of rule 1 of Order XXIII, C.P.C. The Court seized of any civil litigation on his satisfaction can competently allow the withdrawal of suit if it is found that the suit must fail for reason of formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject-matter or its part and the Court may allow the withdrawal of suit on the terms fixed by the Court and the Court may also permit to bring a fresh suit in respect of the same subject-matter or its part. Under sub- rule (3) of rule 1 of Order XXIII, C.P.C. The plaintiff on withdrawal of the suit would be precluded from instituting any fresh suit in respect of the same subject-matter or its part when no such permission is granted at the time of withdrawal under subsection (2) noted above.
' In case of Rafaqat Ali v. Government of Punjab PLD 1998 Lah. 441 relied upon by the trial Court in his order, it was observed by a Division Bench that where a plaintiff or appellant in a case had moved an application for withdrawal of the suit or appeal, the Court would have no option but to accede to the request and if the withdrawal is made unconditionally and subsequently fresh suit/appeal was brought against the provision contained in Order XXIII, rule 1, C.P.C. It would be for the Court to decide the maintainability of such subsequent suit.
' In Abdul Malik's case 1989 CLC 2363, this Court has thoroughly examined the provision contained in Order XXIII, rule 1(2) of the C.P.C. The grievance agitated through review petition in the cited case was that a Single Bench of that Court allowed withdrawal of the suit with permission to file a fresh one in absence of the petitioner to whom certain rights were accrued to him and thus, the withdrawal order was sought to be declared violative of principle of natural justice. The review petition was accepted and the revision petition dismissed as withdrawn was restored.
' In Karamat Ali Khan's case PLD 2001 SC (AJ&K) 30, a Division Bench thoroughly examined, the application of Order XXIII of the C.P.C. And the following conclusion was drawn:- ' "The plain reading of the above order shows that sub-rule (1) contemplates withdrawal of suit which can be done at any time without the prior permission of the 'Court, but under sub-rule (2) the plaintiff may on application withdraw from the suit with liberty to institute a fresh suit. Where he does not desire to institute a fresh suit he can withdraw his suit and permission to withdraw is not necessary. The object of rule is to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. The plaintiff has the right to withdraw his suit whenever he desires but he cannot file a fresh suit on the same subject-matter unless a permission is sought for filing the fresh suit. In a case reported as Gul Sahib Din and others v. Jan Sultan Malik and others PLD 1982 SC 254, it was observed by the Supreme Court of Pakistan at page 513 as follows:-- ' "We have examined the contentions of the learned counsel and come to the conclusion that the application for permission to withdraw the suit contains no particulars regarding the formal defects in the suit, and all what was stated therein was that in the plaint there were formal defects which may result in detriment to the rights of the petitioners."
' Thus, the order of High Court remanding case being correct was not interfered with."
' In Messrs Sindh Engineering (Pvt.) Ltd.'s case reported in 2000 CLC 1524, the Court observed the provision contained in Order XXIII, rule 1, C.P.C. And the case-law cited at the bar as PLD 1983 Pesh.
100, 1989 CLC 1625 and 1996 SCMR 1051 and observed that in the cited cases the ratio decidendi was that if a suit was withdrawn by a plaintiff under Order XXIII, rule 1(1), C.P.C. Unconditionally, he is precluded from bringing a fresh suit under sub-rule (3) of rule 1 of Order XXIII, C.P.C. For the same cause of action. The question involved herein was also subject-matter in Ghulam Rasool's case reported in 2001 MLD 661 and the following dictum was laid down:-- ' "It is settled proposition of law that provisions of C.P.C. Are applicable in the Constitutional proceedings as per principle laid down by the Honourable Supreme Court in Hussain Bakhsh's case PLD 1970 SC 1. The object of rule 1 of Order 23 is to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and deiligence. In arriving to this conclusion I am fortified by the reported judgment of the Privy Council AIR 1914 PC 249. It is settled principle of law in view of the aforesaid provisions of law that plaintiff/petitioner has the right to withdraw a suit whenever he desires but cannot file a fresh suit on the same subject-matter.
' In arriving to this conclusion I am fortified by the judgment of the Honourable Supreme Court in Haji Abdur Rashid Sowdegar's case PLD 1959 SC 287. The second suit/writ petition qua the same subject-matter is not maintainable unless and until the suit/writ petition has been withdrawn with permission to file a fresh suit/writ petition. In arriving to this conclusion I am fortified by the following judgments:-- ' Jewan's case 1989 CLC 2393, Messrs Mehranun Nisa's case 1990 CLC 1334, Mst. Mahroof Jan's case 1990 CLC 19 and Waheed Ahmad's case 1990 CLC 220."
' In case reported as PLD 2000 Lah. 90, a Division Bench of the Lahore High Court dismissed the writ petition placing reliance on the principle of embodied in sub-rule (3) of rule 1 of Order XXIII, C.P.C.
And it was observed that the second writ petition without seeking permission of the Court at the time of withdrawal of earlier writ petition without permission to bring a fresh one was found not maintainable and by arriving at the conclusion the Court relied on 1979 CLC 829, PLD 1957 (W.P.)
Kar. 848, PLD 1970 SC 1, 1969 SCMR 269, 1965 CLC 2805, 1986 CLC 2425, PLD 1989 SC 246, PLD 1959 SC 287, 1970 SCMR 141, PLD 1990 SC 596, 1991 MLD 571 and PLD 1992 Lah.
420.
8. 1999 CLC 2065 relied upon by the learned counsel for the respondent is not relevant for the issue involved. In the said judgment, the Court has considered the provision contained in Order VII, rule 11 whereunder the Court can competently reject the plaint for the grounds mentioned therein. The controversy in the instant case is as to whether in view of the dismissal of the earlier suit on the request of withdrawal without seeking permission to institute a fresh suit would or would not be a ground of rejection of a plaint and the cited judgment is not useful for resolving the said controversy. In the judgment reported as 2000 CLC 1342 facts of the case were that two suits were filed one of them was withdrawn without permission to file a fresh suit as second suit was already pending. The request for rejection of plaint on the ground of withdrawal of the one of the suits without permission to file a fresh one was rightly turned down as the suit was not filed after withdrawal of the second suit thus the provision contained in Order XXIII, rule 1(3) of the C.P.C.
Would not be attracted and the Court has rightly held that the pending suit could not be rejected in Order VII, rule 11, C.P.C. On the ground of unconditional withdrawal of the second suit. In the instant case at the time of withdrawal of the suit, dated 21-9-2001 the application of respondent No,1 plaintiff in the suit under section 12(2) of the C.P.C. Was already pending. The proceeding under section 12(2), C.P.C. Is in the nature of a declaratory suit seeking a declaration to the effect that the decree passed by the Civil Court was the result of fraud and misrepresentation. The said proceedings culminated in dismissal of the application and the proper course for respondent No,1 was to approach the appellate or revisional Court permissible under the C.P.C. But respondent No,1 instead of approaching the next higher forum against the dismissal of her application under section 12(2), C.P.C. Illegally resorted to file the plaint in the instant proceedings which was unambiguously hit by the provision contained in Order XXIII, rule 1(3), C.P.C. And was liable to rejection under Order VII, rule 11 of the C.P.C. It is pertinent to mention here that the decree in favour of petitioner validity whereof was challenged through application under section 12(2), C.P.C. In the earlier suit which was unconditionally withdrawn on 21-9-2001 and the plaint herein, was duly executed by the Executing Court. The lower Appellate Court of the Additional District Judge in his impugned judgment has misinterpreted the word "unconditional" used in Order XXIII, rule 1(2), C.P.C.
By saying that it was mentioned in the application for withdrawal by the plaintiff that her application under section 12(2) is already pending and this was treated to be a condition for withdrawal. This interpretation is based on surmise of the learned Judge as the pendency of the application under section 12(2) mentioned in the application for withdrawal was not a condition but a ground for permission to withdraw the suit. The condition mentioned in Order XXIII, rule 1(2) refers to permission for filing a fresh suit and in the present case admittedly no such request was made in the application for withdrawal of the suit which amounts to withdrawal of the suit unconditionally.
9. For what has been discussed above, I am of the firm opinion that the impugned order of the learned Additional District Judge in Civil Appeal No,13/20 of 2003 dated 30-5-2003 is illegal and without jurisdiction which is hereby set aside and the order of the learned Senior Civil Judge/Aala Illaqa Qazi, Dir, dated 24-2-2003 whereby suit of the respondent No,1 was rejected under Order VII, rule 11, C.P.C. On the mandate contained in Order XXIII, rule 1(3), C.P.C. Is restored with no order as to costs.