1. NADEEM AZHAR SIDDIQI, J.- By filling the application the defendant No. 1 has prayed that order dated 22-3-2004 may be recall/ discharge and further to grant the application of the plaintiffs under Section 151, C.P.C, read with Order X XIII, Rule 1, CPC and dismiss the suit as withdrawn. An affidavit in support of application has been filed.
2. The facts necessary for disposal of the application are that plaintiffs filed suit for declaration/accounts and permanent injunction on the plea that they are the beneficiaries of Wakf-Alal-Aulad established by Late Haji Sir Abdoola Haroon for the benefits of his family, lt was alleged in the plaint that defendant No. 1 with the assistance of Defendants Nos. 4 and 5 have been in sole control of the Wakf properties and has made unilateral decision as regard to the Wakf and its object. The defendants Nos. 1, 2, 3, 4 and 6 have filed their respective written statements.
3. The defendant No. 1 in this affidavit in support of listed application states that amicable understanding/settlement was arrived at between the plaintiffs and defendants Nos. 1 and 2 following which an application under Section 151, CPC read with Order X XIII, Rule 1, CPC was prepared and singed by all the plaintiffs for withdrawal of the suit, the original of which was handed-over to the plaintiffs advocate for the purpose of filing. The same in Court. Since the application was not filed in Court the same was placed on record along with a statement filed by defendant No. 1. Lt was further stated that order dated 22-3- 2004 was passed due to oversight and over looking the application for withdrawal of suit, along with the application the following documents were filed:-
(1) Statement of defendant No. 1 filed in Court on 24-2-2004.
(2) Application under Section 151, CPC read with Order 23, Rule 1, CPC signed by plaintiff No. 1 for self and as attorney of plaintiffs Nos. 2 to 5 and plaintiff No. 6.
(3) General Power-of-Attorney executed by plaintiffs Nos. 2 to 5 in favour of plaintiff No. 1.
4. The plaintiff No. 1 filed counter/affidavit to the said application in which she states that no compromise application was handed over to their Advocate nor anyone else was instructed to file compromise application in the Court. She further submits that compromise application was not presented as negotiation between the parties have broken down in October, 2003 and compromise application could not be granted without satisfying the Court that it was in the interest of Wakf and the beneficiaries.
5. The defendant No. 1 has filed affidavit-in-rejoinder in which he states that the plaintiffs being unable to deny the execution of the application for withdrawal of suit are raising frivolous and pointless issues.
6. The Perokar of the defendant No. 3 has also filed the counter-affidavit to the aid application in which he states that the application is misconceived and cannot be allowed and that the simpliciter withdrawal of suit can also not be permitted as the intention is to deal the Wakf property in violation of law.
7. No rejoinder has been filed by defendant No. 1 to the counter-affidavit of defendant No. 3.
8. Mr. Munir-ur-Rehman the learned counsel of defendant No. 1 submits that the moment the plaintiffs have singed the application the withdrawal in complete and for simple withdrawal of suit no permission form the Court is required. He submits that the plaintiffs after signing the application for withdrawal of suit have failed to file the in Court for some ulterior motives. He further submits that after signing of the application for withdrawal of suit of the plaintiff is not legally competent to proceed with the matter and cannot revoke the withdrawal and the order dated 22-3-2004 has been obtained without referring to the application for withdrawal of suit.
9. He relied upon the case of Bharat Bhushan Gupta v. Rajkumar Gupta (AIR 1994 Delhi 207).
10. Mr. Naim-ur-Rehman the learned counsel for the plaintiffs submits that suit cannot be allowed to be withdrawal on the basis of photocopy of the application. He submits that for allowing the withdrawal of suit request from the plaintiffs is necessary which is lacking in the present case. He further submits that even after filing of an application for withdrawal of suit the plaintiff before orders of the Court can withdraw the application. He further submits that the suit relates to a Wakf and its properties and cannot be allowed to be withdrawn without satisfying the Court. The learned counsel for the plaintiff relied upon the following cases:-
(1) Advocate-General Punjab v. Sh. Abdul Haq (PLD 1956 Lahore 12).
(2) Hussain A. Haroon v. Laila Sarfraz and others (SBLR 2003 Sindh 57).
(3) Maharaj Bahadur Singh v. Blriode Bhary Chaudhry and others (AIR 1936 Calcutta 263).
(4) V. Ramehandra Ayyar and another v. Ramairvigam Chettiar and another (AIR 1963 SC 302).
(5) Abdul Rahim v. Narayan Das Aurora (1992 IA 84)
11. Mr. Yawar Faruqi the learned counsel for the defendant No. 3 supported the arguments of Mr. Naim-ur- Rehman and further submits that suit relates to the properties owned by a Wakf and the allegations of mismanagement of the Wakf and its properties are levelled in the plaint and the plaintiffs cannot be allowed to withdraw the suit unilaterally as some rights has been accrued at the defendants.
12. Mr. Nadeem Ahmed the learned counsel for defendant No. 6 also supported the arguments of Mr. Naim- ur-Rehman and Mr. Yawar Faruqi and opposed the application.
13. I have heard the learned counsel for the parties and perused the record made available before me.
14. Lt is an admitted position that neither any request for withdrawal of suit has been made by plaintiffs nor the said photocopy of the application was produced by the plaintiffs. The said photocopy was first time filed by defendant No. 1 along with his statement dated 24-2-2004 and on the basis of such photocopy the defendant No. 1 prayed for dismissal of suit, lt is true that in her counter-affidavit the plaintiffs have not denied the singing of application for withdrawal of suit but disputed that compromise application was handed over to their accounts for filing the same in Court. The question before me is, whether the suit can be disposed of as withdrawn without the request of the plaintiffs and the order of the Court and whether the plaintiff cannot withdraw the application for withdrawal of suit if prayed before the court passes any order on it.
15. The contention of Mr. Munir-ur-Rehman is that no order of the court is required and the moment the application for withdrawal of suit was signed the withdrawal is complete. Ln the Judgment cited by him from Indian Jurisdiction in the case of Bharat Bhushan Gupta v. Rajkumar Gupta (supra). A learned Single Judge of the Delhi High Court has held as under:- "........ But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim.
16. The language of sub-rule (1) affirms the unqualified right of the plaintiff to withdraw or abandon a suit. There is no provision in the Code which requires the Court to refuse permission to withdraw a suit or to compel a plaintiff to proceed with his suit. This is so because withdrawal of the suit under sub-rule (i) is competent as soon as it takes place and in any case when the Court is informed of it.
17. That being so there is no question of a right to revoke such withdrawal. No order is necessary to effectuate it.
18. Ln the same judgment it was further held as under:- "............ If it is under pressure, then the Court cannot give effect to such a withdrawal of the suit.
19. Therefore, to my mind, it is a fit case, where the Court rightly rejected the revocation of the withdrawal, because the regarding of the endorsement shows that it was not an condition of fulfilling the formalities through the lawyer which formalities were never completed at any stage."
20. From the above judgment, it is clear that some order is required from the Court for giving effect to withdrawal of suit. From the plain reading of Order XXIII, Rule 1, CPC it appears that for unconditional withdrawal of suit leave of Court is not necessary and the plaintiff has unfettered right to withdraw the suit at any time after the institution of suit. At any time has been interpreted in various judgments of superior Courts as at any stage of the proceeding after institution. Under Rule 2 of Order XXIII, CPC the plaintiff can withdraw the suit the permission of the Court to file a fresh suit.
21. Rule 3 of Order XXIII proves, that when the plaintiff withdraw from a Suit or abandons part of a claim, without permission referred to in sub-rule 2, he shall be liable for such cost as a Court may awarded and shall be precluded from instituting any fresh suit in respect of such subject- matter no such part of the claim. This provision shows that for effecting withdrawal of suit order of court is necessary and the proceedings cannot be terminated merely by filing an application for withdrawal of suit as the Court has to determine the Cost and the plaintiff was also precluded from instituting a fresh suit in respect of such subject-matter or such part of claim.
22. The question was considered by a learned Single Bench of this Court in the case of Glath Rashad Pharan v. B.C.C.1. Limited, (1999 YLR 1683).
23. "......... However, the law as it has developed points to the contrary. By now it is well-established that the mere filing of an application for the unconditional withdrawal of the suit does not bring the suit to an end.
24. The question was also considered by a learned D-B of Bombay High Court in the case of Yeshwant Govardhan v. Totaram Avasu and others (AIR 1958 Bombay 28).
25. "..........Notwithstanding the principle deducible from these two case, Mr. Patwardhan contends that no order of the Court is necessary upon an application made by the plaintiff for withdrawal of his suit, ln our opinion, the contention is not correct and cannot be supported, lt is true that O. XXIII, R. 1 does not require in terms that the Court should make an order in which the plaintiff withdraws this suit without any permission to bring a fresh suit. But under 0. XXIII, R. 1, the Court has to make an order about costs, which suggests that the Court has to make an order after the plaintiff withdraws his suit. Moreover, the consequence of the plaintiff, withdrawing his suit without any permission to bring a fresh suit. But under Order XXIII, R. 1, the Court has to make an order about costs, which suggests that the Court has to make an order after the plaintiff withdraws his suit.
26. Moreover, the consequence of the plaintiff, withdrawing his suit, is to debar the plaintiff from instituting any fresh suit in respect of the subject- matter or part of the claim withdrawn by him.
27. Surely if that is the consequence of a withdrawal, the proceedings before the Court must show that the plaintiff has withdrawn either his suit or part of his claim, ln our view, therefore, the Court below was wrong in holding that it was not open to the plaintiff to withdraw his application for withdrawal Ex. 36.
28. The right to withdraw a suit is unfettered and there is no specific provision in CPC by which the plaintiff once requested for withdrawal of suit is/was precluded from withdrawal his request of withdrawal of suit. This question was also considered in. The case of Glaih Rashad Pharan supra and the Court has held as under:- "........ The suit continues because the Court may decide to grant costs and also that the applicant has locus poenitentiae inasmuch as he can at any time before final orders being passed on the application withdrawal his application.
29. This question was also examined by the learned Single Judge of Lahore High Court in the case Shamsuddin etc. v. Mst. Sitan Begum (1993 Law Notes Lahore 318) and observed as under:- ln my view, without injecting life into the statement for unconditional withdrawal of the suit by the order of the Court, the withdrawal is not finally effectuated. Till then the list is alive on the cause list of the Court. Therefore, if the view that lis was live till an order for terminating it was passed by the Court was correct, it could not be seriously doubted that the plaintiff could withdraw the desire expressed for withdrawal of the suit.
30. This question was also examined by the Calcutta High Court in the case of Remeswar Sarkar v. The State of West Bengal & others (AIR 1986 Calcutta 19) and a learned D-B that Court has held as under:- The scope of S. 151 is very wide. Where there is no provision under the Code of Civil Procedure prescribing any remedy. S. 151 will apply, O. 23, R. 1 provides withdrawal of a suit with or without liberty to file a fresh suit. There is no provision for getting an order passed on withdrawal application set aside or passed for withdrawal of an application for withdrawal of suit, ln such circumstances, in our opinion, the Court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power in a proper and suitable case.
31. This question was also considered in the case of Yeshwant Govardhan supra and it was held as under:- "........ We think, therefore, that, in law, the true position is that is open to a plaintiff to withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by an order of the Court.
32. Ln the present case, neither plaintiffs have moved any application for withdrawal of suit nor make any request to the Court for withdrawal of suit, ln such situation the suit cannot be ordered to be withdrawn simply on the basis of photocopy of an application singed by the plaintiffs and produced in the Court by defendant No. 1. Even otherwise if the plaintiffs have filed an application for withdrawal of suit they have a right to request the Court for withdrawal of application for withdrawal of suit and in suitable cases the request for withdrawal of application for withdrawal of suit cannot be refused.
33. Since the suit is pending and continuing the order dated 22.12.2004 was rightly passed for early disposal of suit and there appears no infirmity in the same.
34. For the above reasons the application is dismissed with no order as to costs.