' SYED MANZOOR HUSSAIN GILANI, J.--- This appeal with leave of the Court is filed against the judgment and decree passed by a learned Single Judge of the High Court at Mirpur on 19-5-2004 in Civil Appeal No,34 of 2002.
2. The facts forming the background of this appeal are that Muhammad Iqbal and Punnu Khan filed a suit in the Court of Sub-Judge Sehensa on 2-6-1991 claiming decree of perpetual injunction against Razzaq. Khan and 2 others including Muhammad Bashir, present appellant, for restraining them from interfering in land comprising Khewat No,162, Khata No,1018/853 min, Khasra No,306, measuring 3 Kanals, '16 Marlas, situated in Kathar, Tehsil Sehensa. He claimed that the land had been purchased by his father which is in his possession, while wrong entries have been manoeuvred by the defendant/appellant in connivance with the Revenue Authorities.
3. During the pendency of the case Muhammad Iqbal, respondent, filed another suit in the same Court on 13-10-1997 against Muhammad Bashir, present appellant, Ajmal Khan and Razzaq Khan, who were also parties in the earlier suit, besides many others, all of whom have been proceeded ex parte. The respondent/plaintiff claimed a declaration that he is owner of the land on account of a sale-deed executed on 3-10-1958 in favour of his father for Khasra No,306, 3 Kanals, 16 Marlas, Khasra No,305, 12 Kanals, 4 Marlas and Khasra No,300, 1 Kanal, 6 Marlas, total 17 Kanals, 6 Marlas, situated in Kathar, Tehsil Sehensa. He further claimed that the entries in the Revenue Record in relation to Khasra No,306 against his interest are illegal and against the facts which require correction and also sought perpetual injunction restraining the defendant/appellant from interfering in this number Khasra. He also claimed possession of 12 Kanals, 4 Marlas of land comprising Khasra No,305 which he asserted that its possession has illegally been taken over by appellant/defendant. Appellant, Muhammad Bashir, also filed a counter-suit with respect to the same land. Both the suits were consolidated on 24-6-1999.
4. During the pendency of hereinbefore referred suit, Muhammad Iqbal, respondent/plaintiff withdrew Suit No,57 filed on 2-6-1991, on 8-11-1997. The trial Court framed issues in the consolidated suits on 9-8-1999. The trial Court first heard arguments on three preliminary issues in the consolidated suits, during which it was revealed that Muhammad Iqbal had earlier filed a suit, stated above, and had withdrawn it without permission of the Court. An objection was raised before the Court that the suit subsequently filed by him, under-trial before the Court, is not maintainable under Order XXIII, sub-rules (1) and (3) of rule 1 of the Code of Civil Procedure (hereinafter to be referred as the Code). This objection found favour with the trial Court; consequently the suit was rejected on 16-2-2000 under Order VII, rule 11 for being hit by Order XXIII, sub-rules (1) and (3) of rule 1 of the Code. This judgment and decree was maintained in appeal by the District Judge on 11-12-2001. On second appeal before the High Court by Muhammad Iqbal, judgments and decrees of the Courts below were reversed with the following observations:-- "The subsequent suit is not maintainable in view of Order XXIII, rule 1, C.P.C. However, it is in the interest of justice to restore the previous suit and it is ordered accordingly. The appellant may move for amendment in the previous suit if so advised. The appeal stands disposed of accordingly."
5. Ch. Ali Muhammad, the learned Advocate appearing for the appellant, contended that as the earlier suit was withdrawn by the respondent without permission and subsequent suit was rejected in view of provisions of Order XXIII, sub-rules (1) and (3) of rule 1 of the Code, the High Court without any legal authority ordered restoration of previous suit and allowed respondent to amend that suit.
According to the learned Advocate, the respondent did never seek the restoration of earlier suit nor did he sought any amendment, hence the direction given by the High Court is against the pleadings and unwarranted. He contended that once a party withdraws a suit without permission of the Court, it is precluded from filing a subsequent suit and the suit is definitely liable to be rejected. He placed reliance upon the authorities referred before the High Court titled Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30; Karim Bakhsh v. Jan Muhammad PLD 1977 Lah. 1033 and Muhammad Latif v. Muhammad Iqbal - 1996 CLC 1672.
6. The learned Advocate for the respondent contended that the respondent did not require any, permission for withdrawal of the suit as he did not want to file any fresh suit. According to him the subsequent suit was pending when the earlier suit was withdrawn, hence he was not obliged to seek permission for filing any fresh suit. According to him the prohibition which is visualised by rule 3 of Order XXIII of the Code arises where a suit is filed after the withdrawal of earlier suit without permission of the Court, not to a suit which is already filed. He further contended that the parties as well as the subject-matter in both the suits are different, hence disability visualized by Order XXIII of the is not attracted in the case. He placed reliance upon the cases reported as The Commissioner of Income Tax N.C.A. Circle Karachi and another v. Ashfaque 'Ahmad Khan and 10 others PLD 1973 SC 406; Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah. 336; Ghulam Nabi and others v. Seth Muhammad Yaqub and others. PLD 1983 SC 344; Rangacharya and others v. Guru Ravti Raman Acharya AIR 1928 All. 689; Albert Judah Judah v. Rampada Gupta and another AIR 1959 Cal. 715; Ram Bharose v. Baramdin and others AIR 1939 All. 584; Vallabh Das v. Dr. Madan Lal and others AIR 1970 SC 987; Sonokhan Yar Muhammad and another v. Mt. Bachi and others AIR 1944 Sind 192.
7. We have considered the arguments advanced by the learned Advocates at bar, gone through the judgments of the Courts below as well as the law cited at bar by the learned Advocates for the parties.
8. An authority of this Court relied upon by the learned Advocate for the appellant reported as Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30 needs special attention, as it appears attracting the case in hand. In this case a suit was filed in 1975 while a subsequent suit with respect to same subject-matter was filed in 1979. The earlier suit was withdrawn on 29-8-1988. This Court felt pleased to hold as follows:- ... The provisions of Order XXIII sub-rule (3) cannot be defeated by instituting a fresh suit before withdrawing the previously filed suit. It is well-settled principle of law that what is not allowed to be done directly cannot be allowed to be done indirectly. Therefore, sub-rule (3) mentioned above applies to the present case."
' The perusal of the entire report of this case reveals that some very important legal points arising out of Order XXIII, sub-rules (1), (2) and (3) of rule 1 of the Code were not discussed. The authorities referred before this Court by the learned Advocate for the respondent on this law were also not discussed and do not appear to have been brought to the notice of the Court. The principle laid down in this case may be attracted if the points emerging out of Order XXIII, sub-rules (1), (2) and
(3) of rule 1 of the Code squarely apply in the case, not otherwise. We propose to discuss it in the paras. To follows.
9. Before proceeding further we would like to reproduce Order XXIII, sub-rules (1), (2) and (3) of rule 1 of the Code for proper perception of the case which reads as follows:-- "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) Where 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 a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) 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 instituting any fresh suit in respect of such Subject-matter or such part of the claim."
' Perusal of Order XXIII, sub-rules (1), (2) and (3) of rule 1 of the Code makes three sentences particularly prominent. In sub-rule (1) the words "At any time after the institution of a suit" in sub- rule (2)(b) the words "for allowing the plaintiff to institute a fresh suit" and in sub-rule (3) the words "precluded from instituting any fresh suit". When all these sentences are read together, it is unequivocally revealed that only that fresh suit is barred which is filed after withdrawal of the earlier suit; not the one which is filed and was pending at the time of filing the fresh suit. In the case in hand the first suit filed by the respondent was withdrawn on 8-11-1997 when the second suit stood already instituted on 13-101997. Thus, the suit was not instituted after the withdrawal of the earlier suit, so as to attract the provisions of sub-rule (3) of Order XXIII of the Code. This suit was pending at the time of withdrawal of earlier suit. We are fortified in holding this view by the case reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 wherein it is held as follows:-- " A fresh suit envisaged in the rule is one filed subsequent to the withdrawal of the earlier suit. On the question whether the rule barred a suit which at the time of the withdrawal of the earlier suit had already been instituted and pending, we find that in Ram Mal v. Upendra Datt AIR 1928 Lah. 710 relying on P. Surja Reddi v. Subba Reddi (1916) 39 Mad. 937, it was held that a second suit will not be barred in the case of withdrawal of a previous suit unless conditions of Order XXIII rule 1, C.P.C. Are fully satisfied and that if the subsequent suit was already pending at the time of the withdrawal of the previous suit, the provisions could not be attracted. A Division Bench of the Lahore High Court in Mungi Lal v. Radha Mohan AIR 1930 Lah. 599 held that:-- ' Order XXIII, rule 1 refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. It appears to me that the section cannot be read so as to bar a suit which has already been instituted before the other suit had been abandoned or dismissed'.
' This judgment, had been followed in Abdullah v. Bashiran Bibi PLD 1981 Lah. 336 and it had been held that a fresh suit which had been pending at the time of withdrawal of a previous suit was not barred. The view taken in Mungi .Al's case had also been followed by this Court in Commissioner of Income Tax v. Ashfaq Ahmad PLD 1973 SC 406, wherein it had been held that where one writ petition had been filed during the pendency of a previous writ petition, the withdrawal of the previous writ petition before reaching the stage of hearing on merit would not affect the maintainability of the second petition which could legally proceed in spite of withdrawal of the previous petition.
' The Sindh High Court has also been of the same view which is reflected in its judgments reported as Ashfaq Ahmad Khan v. Custodian of Evacuee Property PLD 1966 Kar. 597 and Irshad Ali v. Islamic Republic of Pakistan 1981 CLC 111. We are, therefore, not inclined to agree that the sit in question was affected by Order II, rule 2 or Order XXIII, rule 1, C.P.C."
' This view was also adopted by Lahore High Court in the case reported as Abdullah and 8 others v.
Bashiran Bibi and 4 others PLD 1981 Lah. 336 relying on several other authorities on the point.
10. A comparative study of first and second suit reveals that in the earlier suit the respondent had sought a decree for perpetual injunction for restraining the appellant from interfering in Khasra No,306 and correction of the Revenue Record to this extent only, while in the subsequent suit he, besides seeking this remedy; also sought possession of Khasra No,305, measuring 12 Kanals, 4 Marlas which was not earlier sought. In the subsequent suit he also sought a declaration that he is B owner of three Khasras Nos.300, 305 and 306 on the basis of sale-deed executed on 3-10-1958 in favour of his father, while this relief was not claimed in the earlier suit. The earlier suit was against three persons only, namely, Muhammad Bashir, Ajmal Khan and Muhammad Razzaq, while the subsequent suit was against many other persons, mostly descendants of the persons from whom the father of respondent had purchased land, besides Revenue Officers, insofar as the correction of Revenue Record is concerned. This relief was not sought in the earlier suit.
11. It becomes clear from above that the identity of causes of action and of the parties, besides the relief sought in two suits is different. Hence, the bar contained in Order XXIII, R.1, sub-rule (3) of the Code does not apply. We are fortified in holding this view by Rangacharya and others v. Guru Ravti Raman Acharya AIR 1928 All. 689 wherein repelling a similar objection it was held as under:--- "It would be necessary for the appellant to establish the identity of the parties and the identity of the causes of action in the two suits before this plea could succeed."
' We are also fortified in holding the above view by Albert Judah Judah v. Rampada Gupta and another AIR 1959 Cal.
715. We may advantageously reproduce the relevant para. Which is as follows:-- "... I agree that if on a comparison of the plaints in the two suits it is found that the reliefs claimed and the allegations constituting the cause of action are not exactly identical, that will not be conclusive and subsequent suit may yet be hit by the mischief of Order XXIII, R.1(3). Mr. Das is also right when he submitted that for the determination of the question one has to look to the substance of the two suits and not to their form and language only. But how far does it take us in solving the problem? We have yet to find out what the phrase "in respect to the same subject- matter" means. The subject-matter of a suit can only be ascertained from the plaint filed. For the purpose of finding out the meaning of "subject-matter" within the meaning of Order XXIII, R.1(3) it is not necessary nor is it proper to look to the written statement. What the plaint should contain is clearly stated in the Code of Civil Procedure. The imperative provisions of a plaint are, amongst others, the facts constituting the cause of action and the relief which the plaintiffs claimed and the cause of action that entitles the plaintiff to get the reliefs claimed. This indicates that the subject- matter of a suit can only be ascertained from the cause of action and relief, set out in the plaint. I cannot conceive how without reference to the cause of action and the reliefs, as stated in the plaint, the subject-matter of a suit can be ascertained. If the cause of action in the subsequent suit is different from the cause of action in the previous suit withdrawn, the two suits must be held to be in respect of different subject-matter. I hasten to add that the two causes of action must not be different in form only but in substance; in other words, the difference must not be due to the clever draftsmanship of the counsel who drafted the subsequent plaint whereby the same cause of action has been presented in different form. As I read the decided authorities to be referred to presently, I think the trend of decisions is consistent with the conclusions set out above."
12. It will not be out of place to reproduce the dictum from a case reported as Vallabh Das v. Dr. Madan Lal and others AIR 1970 SC 987 wherein it was observed as follows:-- "... For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject- matter of the second suit is the same as that in the previous suit.
13. In view of above stated legal and factual position, the authority of this Court titled Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30, discussed above, does not squarely apply in the case in hand, hence we depart from that. As far the other authority relied upon by the learned Advocate for appellant reported as Karim Bakhsh v. Jan Muhammad PLD 1977 Lah. 1033 is concerned, it is equally inapplicable in the case in hand. In this case the suit was withdrawn by the plaintiff with the consent of the defendant but without permission of the Court.
The plaintiff was subsequently, disallowed and held precluded from instituting the fresh suit in respect of same matter and it was rightly held so.
14. Similarly in the third authority of the High Court of Azad Jammu and. Kashmir reported as Muhammad Latif v. Muhammad Iqbal 1996 CLC 1672 the plaintiff was held to be precluded from filing subsequent suit for the reason that the subject-matter of the earlier suit was same as of the fresh suit.
15. We have discussed above that if the identity of the parties and the causes of action are not the same, the provisions of Order XXIII, sub-rule (3) of rule 1 of the Code are not attracted in the case.
Thus, the principle of law laid down in. The authorities referred to by the learned Advocate for the appellant are inapplicable in the case in hand.
16. The learned Judge of the High Court felt persuaded to uphold the ends of justice by allowing the respondent to amend the suit by restoration of suit withdrawn by him We agree with the learned Advocate for the appellant that when the suit was withdrawn and there was no claim by the respondent for its restoration, the question of its restoration was not in issue and advising amendment in that suit after the restoration was a far-fetched judicial approach.
17. However, we agree with the learned Judge of the High Court that the ends of justice would be defeated if the respondent is non-suited when his suit did not relate exactly to same subject- matter and parties and cause of action were also not exactly the same. We may also state that these were sufficient grounds for withdrawal of the suit with permission to file fresh suit, had that course been adopted by the respondent. It is also an accepted position under law that if an application for withdrawal of case with permission to file fresh case is not allowed by the Court, the application is dismissed; not the case. Hence even if the respondent had applied for withdrawal of earlier case with the submission to file fresh, his application, nor suit could be dismissed.
18. In view of what is discussed above, judgment of the High Court as well as of the Courts below, are hereby set aside. The Suit No,122 of 1997 filed on 13-10-1997 and dismissed by the trial Court on 16-2-2000 is restored and it is held that it was pending at the time of withdrawal of earlier suit by the respondent and the provisions of sub-rule (3) of rule 1 of Order XXIII of the Code were not attracted in the case.
Suit restored.