SH. HAKIM ALI, J.--- Brief facts leading to this writ petition are that on 27.10.1987 Mst. Wafa Begum had filed a suit for declaration alongwith the prayer for grant of permanent injunction. The suit was being contested when the right of the plaintiff was closed to produce its evidence on 10.5.1993. This order was challenged by the aforesaid plaintiff in the Hon'ble High Court through Civil Revision No. 447/1994/BWP with the title of "Mst. Wafa Begum v. Sheryar". The aforesaid order passed by the learned Civil Judge was maintained and the civil revision was dismissed on 24.8.1994. To make it ineffective and inoperative, the respondent filed another fresh suit with regard to the same subject-matter on 25.9.1998. After institution of that fresh suit the plaintiff withdrew the earlier one on 28.9.1998; which was three years thereafter. The learned counsel for the petitioner-defendant submitted an application under Order VII, Rule 11, C.P.C., before the learned Trial Court in the fresh suit for rejection of the plaint, which was dismissed by the aforesaid Court on 14.11.2002.
2. Aggrieved from that order the writ petition filed a civil revision in the District Court, which was heard by a learned Additional District Judge who too dismissed the same on 15.9.2003. Hence, this writ petition.
3. The learned counsel appearing on behalf of the writ petitioner submits that the second suit was not competent as the earlier one was withdrawn without permission and the respondent-plaintiff could not be permitted to make ineffective the adverse orders having been passed against her in the earlier litigation. Through filing of this second suit a mechanism was invented by plaintiff- respondent to get those orders made inoperative and ineffective, which order was upheld even by this Court in C.R. No. 447/1994/BWP referred to above. To support his version he has referred to KLR 2001 SC (AJK) 224 (Karamat All Khan and another v. Sardar A.I and 29 others) in which the second plaint of the suit was rejected. Learned counsel has further relied upon on the following authorities:-
(i) 2003 PSCC 1624 (Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others).
(ii) 2001 CLR 369 (Kaleem Ullah v. Additional District Judge and 3 others).
(iii) 2001 MLD 661 (Ghulam Rasool and 12 others v. Shana and 12 others).
(iv) (v)
4. Opposing the version/contention of the learned counsel for the writ petitioner, it has been argued by the learned counsel for the respondent that Order XXIII, Rule 1(3) of the CPC had permitted such course to be adopted. So, the fresh suit could not be rejected and the orders passed by both the learned Courts below are legal and valid in the eyes of law. He has referred to PLD 1983 SC 344 (Ghulam Nabi and others v. Seth Muhammad Yaqub and others), 1990 MLD 788 (Syed Ahmad and 3 others v. Tanveer Ahmad and another) PLD 1973 SC 406 (The Commissioner of Income Tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others), 1981 CLC 111 (Irshad A.I v. Islamic Republic of Pakistan and 2 others), PLD 1981 Lah. 336 (Abdullah and 8 others v. Bashiran Bibi and 4 others) and 1992 CLC 2492 (Mst. Amina Parekh and others v. Ahmed Parekh and others).
5. I have considered the arguments of the learned counsels and have perused the record with their assistance.
6. The record reveals that Mst. Wafa Begum, predecessor-in-interest of respondents Nos. 3 to 19 had earlier filed a suit on 27.10.1987 in which she was granted many opportunities to produce her evidence. The evidence of Mst. Wafa Begum was closed on 10.5.1993 by the learned Senior Civil Judge, Bahawalpur. Aggrieved from that order Civil Revision No. 447/1994/BWP (Wafa Begum v.
Sher Yar Khan and another) was filed but it was dismissed on 24.8.1994. Accordingly, the order dated 10.5.1993 closing the evidence of Mst. Wafa Begum became final. On 23.10.1996 an application under Order XIII, Rule 2, CPC was moved for grant of permission to produce the original registered gift deed dated 1.6.1977 and the memorandum of gift-dated 25.5.1977 into evidence, which application was also dismissed on 6.10.1997 by the aforesaid learned Court. Another application moved for the same purpose had also met with same fate on 7.9.1998 but on 28.9.1998 the learned counsel appearing on behalf of legal representatives of Mst.
Wafa Begum got consigned the suit to the record room as he had earlier filed a fresh suit. In the anew suit, an application under Order VII, Rule 11, CPC was filed by the present writ petitioners on the ground that the present suit had contained the same cause of action and the subject-matter, and was, therefore, not competent. This application was dismissed on 14.11.2002 by the learned Trial Court and the revision filed on 17.12.2002 had failed with the learned Additional District Judge on 15.9.2003. Hence, this writ petition.
7. The question, which has been raised, is of vital importance . The disputatious question, which has been put before this Court is that in an earlier suit when adverse orders against a plaintiff had been passed and upheld uptill the revisional Court also as to whether in such case, the plaintiff could withdraw that suit by filing a fresh suit on the same subject-matter and the cause of action.
According to Order XXIII, Rule 1, C.P.C., the plaintiff can withdraw a suit without permission of the Court, but he would be precluded from instituting the fresh suit in respect of same subject-matter and such plaintiff cannot afterwards claim that relief, cause of action or portion of the claim in the fresh suit. In PLD 2003 PSCC 1624 (Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others) the Hon'ble Supreme Court has clearly laid down that the withdrawal of suit or abandonment of claim is not an absolute right but is subject to certain limitations and conditions. In 2001 CLR 369 (Kaleem Ullah v. Additional District Judge and 3 others) the second suit with same cause of action was held not to be competent, as the earlier suit was not withdrawn with permission to file a fresh suit. In 2001 MLD 661 (Ghulam Rasool and 12 others v. Shana and 12 others) the fresh/second suit was held to be not maintainable when the earlier suit was not conducted with care and diligence. In KLR 2001 SC (AJK) 224 (Karamat A.I Khan and another v. Sardar All and 29 others) the same ratio decklendi was laid down therein.
8. As regards the citations relied upon by the learned counsel for the respondents of PLD 1973 SC 406 (The Commissioner of Income Tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 1,0 others) the dispute of the present case was never raised nor decided in it. In 1981 CLC 111 (Irshad A.I v. Islamic Republic of Pakistan and 2 others) the petition was withdrawn on "Kacha Peshi" (motion stage), therefore, the second petition on the same subject-matter was held maintainable. In PLD 1983 SC 344 (Ghulam Nabi and others v. Seth Muhammad Yaqub and others) the dispute of the present case was not agitated and no decision with regard to it was made in that case. The same dictum has been laid down in PLD 1981 Lah. 336 (Abdullah and 8 others v.
Bashiran Bibi and 4 others). In 1992 CLC 2492 (Mst. Amina Parekh and others v. Ahmed Parekh and others) simple withdrawal of the suit was permitted in that case. It is important to point out that in that case the learned Judge had noted that withdrawal of the suit could not be permitted if preliminary decree was passed in the suit. Meaning thereby if a valid right has accrued to a party then simple withdrawal cannot be permitted.
9. After hearing the learned counsels and scanning the rulings above-noted and consulting the record, I have concluded that a simple withdrawal by a plaintiff under Order XXIII, Rule 1 is permitted and it is a right which has been granted by the provisions of that Order. That right would be free from restriction if there was no hindrance in the exercise of that right. When in a case which has been filed by the parties and a valuable right has accrued. To a party in or during that proceedings, the simple withdrawal cannot be allowed to a plaintiff. The law cannot be interpreted in such a way so as to defeat the intent of justice or to allow plaintiff to exercise his right of withdrawal in such way so as to take an undue and unfair advantages against his adversary and to make ineffective anc inoperative the lawful orders of competent Courts. Ir the present case, it is an admitted fact that in the earlier suit the right to produce evidence was closed, the application under Order XIII, Rules 1 and 2 was dismissed and those orders therein had attained finality. So, in such a case the plaintiff cannot be allowed to withdraw his case and file another (fresh) suit so as to set aside the lawful orders of the Courts.
10. There is yet another aspect of the case, legally speaking, it has clearly been laid down in the principles of law that a person should not be vexed twice for the same cause of action, incident or occurrence. So, keeping in view this principle of law even the fresh suit cannot be held to be maintainable.
11. Accordingly, accepting this writ petition the order-dated 14.11.2002 upheld by the learned Additional District Judge on 15.9.2003 are declared to be illegal and unlawful, the fresh suit of the plaintiff is held to be not maintainable and the order of withdrawal in the earlier suit is also set aside. Consequently, the earlier suit is restored to its original number for decision on merits. .