' Brief facts leading to this writ petition are that on 27-10-1987 Mst. Wafa Begum had filed a suit for declaration along with 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 Honourable High Court through Civil Revision No,447 of 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 days 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 petitioner 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appearing on behalf of the writ petitioner submits that the second suit was not competent as the earlier one was withdrawn without permission and the respondent-plaintiff could not be permitted to make ineffective the adverse orders having been passed against her in the earlier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 of 1994/BWP referred to above. To support his version he has referred to Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 (AJ&K) 30 in which the second plaint of the suit was rejected. Learned counsel has further relied upon the following authorities:--
(i) Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979.
(ii) Kaleem Ullah v. Additional District Judge and 3 others 2001 MLD 440.
(iii) Ghulam Rasool and 12 others v. Shana and 12 others 2001 MLD 661.
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 C.P.C. 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 eye of law. He has referred to Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344, Syed Ahmad and 3 others v. Tanveer Ahmad and another 1990 MLD 788, The Commissioner of Income-tax N.C.A.
Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406, Irshad Ali v.
Islamic Republic of Pakistan and 2 others 1981 CLC 111, Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah. 336 and Mst. Amina Parekh and others v . Ahmed Parekh and others 1992 CLC 2492.
5. I have considered the arguments of the learned counsel 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 of 1994/BWP (Wafa Begum v.
Sher Yar Khan etc.) 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, C.P.C. Was moved for grant of permission to produce the original registered gift- deed dated 1-6-1977 and the memorandum of gift-deed 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 new suit, an application under Order VII, rule 11, C.P.C. 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 up till 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 Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979 the Honourable 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 Kaleem Ullah v. Additional District Judge and 3 others 2001 MLD 440 the second suit with same cause of action as held not to be competent, as the earlier suit was not withdrawn with permission to file a fresh suit. In Ghulam Rasool and 12 others v. Shana and 12 others 2001 MLD 661 the fresh/second suit was held to be not maintainable when the earlier suit was not conducted with care and diligence. In Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 (AJ&K) 30 the same ratio decidendi was laid down therein.
8. As regards the citations relied upon by the learned counsel for the respondents of The Commissioner of Income-tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406 the dispute of the present case was never raised nor decided in it. In Irshad Ali v. Islamic Republic of Pakistan and 2 others 1981 CLC 111 the petition was withdrawn on "Kacha Peshi" (motion stage), therefore, the second petition on the same subject-matter was held maintainable. In Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 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 Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah.
336. In Mst. Amina Parekh and others v. Ahmed Parekh and others 1992 CLC 2492 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 counsel 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 a plaintiff to exercise his right of withdrawal in such a way so as to take an undue and unfair advantage against his adversary and to make ineffective and inoperative the lawful orders of competent Courts. In 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.