' Through this written petition the petitioner has challenged the order, dated 14-10-2003 passed by the learned Civil Judge, D.G. Khan and judgment, dated 27-5-2004 passed by the Additional District Judge, D.G. Khan.
2. The facts leading to the present writ petition are that respondent No,3, Mst. Sony, daughter of Punnu, filed a suit for declaration with permanent injunction against the present petitioner and respondents No,4 and 5 in the Court of learned Senior Civil Judge, D.G. Khan, which was entrusted to Mr. Abdul Karim, Civil Judge, D.G. Khan. The suit was contested by the present petitioner asserting therein that the plaintiff and Bhag Bharri respondent No,4 are not real sisters, plaintiff is not owner in' possession of 1/4th share in the disputed property and prayed for dismissal of the suit.
On the divergent pleadings of the parties, the learned trial Court framed as many as four issues on 15-10-2003 and case was adjourned for recording evidence of the plaintiff. The same was finally adjourned to 4-6-2003 for evidence.
3. On 7-5-2003 respondent No,3, Mst. Sony is stated to have filed an application through Mr. Tassadaq Hussain Lunda, Advocate before the trial Court stating, therein, that a compromise has been effected between the parties and the suit be dismissed as withdrawn. On the same day, learned trial Court recorded her statement to the effect that her grievance had been redressed, and she did not want to continue with the suit, the same might be dismissed as withdrawn. On the same day before passing of any order on the application, Mst. Sony again appeared in the Court with Mr. Sultan Mehmood, Advocate and stated that her earlier statement was got recorded by playing fraud upon her by the petitioner and others. After recording her statement, the learned trial Court heard arguments of the learned counsel of the parties. The trial Court ordered that Mst. Sony be produced in the Court, she appeared on 14-10-2003. The learned trial Court, after recording her oral statement decided to proceed with the suit and, fixed the same for evidence of the plaintiff.
4. The petitioner being aggrieved of the order, dated 14-10-2003 of the learned trial Court, filed a revision petition challenging the same before the learned District Judge, D.G. Khan, who vide impugned order, dated 27-5-2004, dismissed the civil revision on 27-5-2004. Hence this writ petition challenging the impugned order, dated 14-10-2003 and judgment, dated 27-5-2004 was filed.
5. Learned counsel for the petitioner argued that respondent No,2 acted illegally by recording subsequent statement of respondent No,3 on 7-5-2003, and thereafter, proceeded to decide the same vide order, dated 14-10-2003. It is further argued that the application seeking permission to withdraw the suit and statement made to the effect, amounts to admission of respondent No,3 and warrants dismissal of the suit by applying principle of Order XII Rules 6, C.P.C.
7. Learned counsel for respondent argued that on 7-5-2003 the application moved by Mr. Tassadaq Hussain Lunda, Advocate on behalf of respondent No,3 was without her instructions. She was misled by the petitioner that her grievances had been redressed and under the influence of this incorrect assurance she moved the application and got recorded her statement before the trial Court. But, on the same day, she again appeared before the Court along with Mr. Sultan Mehmood, Advocate her original counsel, through whom she filed her suit. Mr. Sultan Mehmood, Advocate stated before the Court that earlier statement made by her was got recorded by another counsel under the instructions of the petitioner. Her grievances had not been redressed; she wanted to continue with her suit. Learned trial Court on 14-10-2003 decided to proceed with the case. It is further argued that the civil revision filed before Additional District Judge, D.G. Khan which was finally heard and was rightly dismissed by him.
8. The learned Additional District Judge after careful perusal of suit and Wakalat Nama, alleged to have been filed on behalf of respondent No,3, Mst. Sony by Mr. Tassadaq Hussain Lunda, Advocate, observed that the thumb-impression was not of Mst. Sony. The statement of Mst. Sony recorded before the Court was not verified by her new counsel, Mr. Tassaduq Hussain Lunda, Advocate, nor he identified the plaintiff. Learned counsel argued that no case was made out and the learned Additional District Judge rightly dismissed the civil revision. It is further argued that no ground regarding Order XII, rule 6, C.P.C. Was raised and argued before the learned Additional District Judge. It is not a case of admission of pleadings or otherwise.
8-A. I have given any anxious consideration to the arguments raised by the learned counsel for the parties and after perusing the pleadings and documents filed along with the writ petition. I am of the considered opinion that it is not a case of admission of plaintiff by way of pleading or documents or otherwise. No reasonable, plausible explanation came forward as to why application was filed much prior to the date fixed for evidence i,e, 4-6-2003 by another learned counsel when the original counsel was not released by the defendant. Learned counsel failed to give any reply to the same. The main stress of the learned counsel for the petitioner was that, as required under Order XII, rule 6 C.P.C., after admission by the respondent No,3, it was the duty of the learned trial Court to dismiss the suit. I do agree with the arguments raised by learned counsel for the petitioner.
The statement made by the respondent was not final as after some time on the same day she appeared before the Court and given another statement to continue with her suit. The subsequent statement was made by the respondent before the Court had proceeded to pass another order on her earlier statement. In such situation the respondent was within her right to withdraw her earlier statement and proceed with the suit.
9. The word admission used in rule 6 of Order XII, C.P.C. Means an "admission made in the pleading of the parties or otherwise. Then the admission qualifying for grant of judgment or decree has to be cleared unambiguous, unqualified and unequivocal. In the case in hand there is no admission made by the respondent admitted the claim of petitioner in the application alleged to have been filed by her. She made a statement that her grievance had been redressed and she wanted to withdraw her suit. This statement is not an admission under rule 6 of Order XII, C.P.C. It is a case covered by rule 1 of Order XXIII, C.P.C. i,e, withdrawal of suit or abandonment of claim. As per rule 1, "At any time after institution of suit plaintiff may withdraw his suit or abandon his claim, against any or all defendants." This prayer can be made in writing or orally or by recording statement with the Court. The withdrawal proceeding is completed the moment an order to that effect is recorded.
Prior to that, it is only a request from the plaintiff, meaning thereby that when the withdrawal application is pending and not allowed by the Court, it is not complete proceedings and plaintiff can withdraw the same by making a written application or by making or by recording statement in the Court. Here in this case request for withdrawal was made on 7-5-2003 in writing and by recording statement. Before any order was passed on the application, respondent No,3 again on 7- 5-2003 same day appeared before the Court with the request that she wanted to withdraw her written application for withdrawal the suit. She also got recorded her statement as to why, she was withdrawing her written request to withdraw the suit, which rightly allowed by the Court. Even otherwise the females of the families are generally denied the right of inheritance from the ancestral property. Same is the situation with the present case. Respondent No,3 was denied her right by her brother and father. She filed the suit seeking declaration of her title. Pending this suit the petitioner and other misled the respondent on false promise and got filed application through a defendant and got recorded her statement when she contacted her original counsel, who discussing the mischief and fraud of the petitioner produced respondent No,3 before the trial Court and got her statement recorded vide which she requested to withdraw the suit, which was rightly allowed by the trial Court.
10. According to rule 6 of Order XII, C.P.C. Any party may, at any stage of a suit, where admission of fact has been made, whether on the pleading or otherwise, apply to the Court for such judgment or order as on such admission, he may be entitled to, and the Court may upon such application make such order, or give such judgment, as the Court may think just.
11. In the present case there is no admission on the part of respondent No,3 as required under Order XII, rule 6, C.P.C. Neither there is admission in the pleadings binding the respondent/plaintiff, nor there is any admitting document, the admission of which would constitute admission on the part of the respondent. There is no admission made by the respondent No,3, authorizing the Court to proceed and decide the suit against her. Learned counsel has failed to point out any illegality or irregularity in the impugned orders passed by the learned trial Court as well as the order of the learned Additional District Judge passed in the civil revision.
12. The upshot of the above discussion is that the writ petition having no merit is dismissed in limine.