1. ' This appeal emanates from Suit No,374/1992 filed by the appellant for damages against the respondents. The controversy herein arose on 20-4-2005, when, in the absence of Mr. Kamal Azfar, senior counsel for the appellant, Mr. Munir A. Malik, learned counsel for the respondent Nos. 3 and 4 made a statement before the single Judge that Mr. Kamal Azfar, counsel for Plaintiff was not pressing the suit for damages against the respondent Nos. 3 and 4, therefore their names be struck off from the plaint.
2. ' Mr. Saadat Yar Khan, learned counsel for the appellant stressed that he honoured the statement of Mr. Munir A. Malik, advocate but that he was ignorant of such arrangement having been agreed to between the senior counsel, and requested for time to confirm such statement of the senior counsel for the appellant. The Learned Single Judge on 5-4-2005, recorded that Mr. Saadat Yar Khan, did not press the suit against the respondents Nos.3 and 4 to the extent of special damages, and later appellant's counsel moved an application bearing C.M.A. No, 3501 of 2005 under section 151, C.P.C, for modification of the Order passed earlier to the extent that the claim for special damages against respondent Nos. 3 and 4 be dropped. However, claim to the extent of general damages for defamation would continue against respondents Nos. 3 and 4, which, however, was dismissed on 27-3-2006.
3. ' Mr. Saadat Yar Khan, learned counsel for the appellant has contended that he had never conceded before the learned single Judge on the basis of the statement of Mr. Munir A. Malik, advocate, and had instead sought time from the Court to confirm the facts, which through letter dated 2-5-2005, addressed to Mr. Kamal Azfar for clarification and its reply dated 3-5-2005, made it clear that Mr. Munir A. Malik must have made such statement on the basis of some misunderstanding. It was, however, agreed between the senior counsel that the plaintiffs' claim to the extent of special damages from cancellation of contract had not resulted in damages, because respondent Nos. 3 and 4 had published a material when the concerned contract had already been cancelled. It is next urged that through C.M.A. No,3501 of 2005, the appellant had availed the remedy seeking restoration of the suit against the respondents Nos. 3 and 4. It is that through the power conferredcontended upon him, by the appellant, no authority was extended for the withdrawal of the suit, and legally, provision of Order-XXIII Rule-1, C.P.C. Could not be invoked, which resulted in miscarriage of justice.
4. ' On behalf of the respondents Nos.1 and 2 Mr. Rashid Anwar has stressed upon the scope of Order XXIII Rule-1, which simpliciter provides for a plaintiff withdrawing his suit without permission to bring a fresh suit. 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. 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.
5. ' In support of the above contention reliance has been placed on the following case laws:--
(i) Yashwant Goverdhan v. Totaram Avasu and others AIR 1958 Bombay (28 V 45 C 11).
(ii) S. Anthony Muthu and another v. State of Kerala and others AIR 1973 Kerala 141 (V 60 C 49).
(iii) Smt. Raisa Sultana Begum and others v. Abdul Qadir and others (AIR 1966 Allahabad V 53 C 94)
(iv) Thomas George v. Skariah Joseph and another AIR 1973 Kerala 140 (V 60 C 48)
6. ' Notwithstanding, the principle deducible from the cases cited by Mr. Rashid Anwar, a suit can be disposed of by withdrawal as indicated in Order XXIII, and the Court having control over the proceedings is not even required to pass an order on the withdrawal application after A exercise of power by the Court, as it becomes functus officio. It is not open to the party to back out of it until brought to its notice that the withdrawal has not been acted upon. On withdrawal, certain order may be passed by the Court but they are not for giving effect to the withdrawal but to give effect to consequences arising out of withdrawal. In case of Raeesa Sultana (supra) the following dictum is laid down:--
(7) There is no provision laying down the procedure for withdrawing a suit, the manner in which it can be withdrawn and the essential physical acts required to be done to constitute withdrawal.
7. Withdrawal can be in any form (see Muhammad Ali v. Shujat Ali, AIR 1917 Nag. 1 and Gulkandi Lal v.
8. Manni. Lal. (1901) ILR 23 All 219, and can exist even before communication of the fact to the Court.
9. When a person institutes a suit he first makes a mental decision to institute it and then does the physical act of preparing a plaint, signing and verifying it and presenting it in Court. A suit is instituted only when this physical act is done; no suit came into existence merely on his deciding in his mind to institute it. In the same way a physical act is essential in order to withdraw a suit merely deciding mentally to withdraw is of no consequence and an overt act must be done. The usual or normal overt act is that of informing the Court that the suit has been withdrawn; as, soon as this information is given withdrawal of the suit comes into existence or becomes a fait accompli and the suit stands withdrawn from that moment. An order awarding costs against the plaintiff will be an act to be done by the Court in consequence of the withdrawal.
10. ' There cannot be such an order unless the withdrawal is there as a fact. A physical act of settling the dispute with the defendant out of Court by which his grievance is fully removed may be another overt act having the effect of withdrawal. The essential fact to be remembered is that a plaintiff must do some over of physical act in order to withdraw the suit; he cannot withdraw it simply by deciding to withdraw it or by treating it as withdrawn in his mind. Since it is for the plaintiff to exercise the right of withdrawing his suit, he has not to make any application to the Court or pray for any order. He has to do the act of withdrawal himself and then he should inform the Courts so that it knows that it has been withdrawn and is governed in future proceedings by the knowledge. On a suit being withdrawn it has to decide what costs should be awarded against the plaintiff and naturally it cannot decide this unless the withdrawal is brought to its notice. If the withdrawing plaintiff is the only plaintiff and the whole suit is withdrawn the Court will consign the record to the record room and will not have to do anything further in the suit. If there are other plaintiffs, or only a part of the suit is withdrawn, it will deal only with the remaining plaintiffs or the reminder of the suit. A written information given by a plaintiff to the Court of the withdrawal may take the form of an application but in the eye of law it must be treated as mere giving of the information, The Court may even pass some such order as "Allowed to be withdrawn" or "Dismissed as withdrawn": but this has no greater effect that its simply writing "seen" or "Noted". In the instant case there were two plaintiffs besides the withdrawing plaintiff and he made an application praying that his name be removed from the array of plaintiffs, but it does not follow that there was no withdrawal by him so long as no orders were passed by the Court on the application. It would be the Court's own duty to expunge his name from the array of parties on being informed of the withdrawal; he did not have to pray for this at all. He did inform the Court of the withdrawal and of his having been left no interest in the suit and the mere fact that this information took the form of an application inviting a certain order did not mean that there was no complete or effectual withdrawal so long as the Court did not pass the desired order"
11. ' It is further pointed out that after the withdrawal of the suit by the plaintiff, the Court ceased to have jurisdiction over his suit and thus became functus officio, but that a fresh suit could again be filed in the Court with jurisdiction over it. As far as the withdrawal of suit was concerned, that is at an end, and no further proceedings can be taken in it. As the suit of the appellant did not exist, no application for revoking the withdrawal can be made in the suit, nor can such application be entertained.
12. ' Mr. Faisal Siddiqui, learned counsel for the respondent Nos. 3 and 4, has seriously challenged the scope of the Appeal in terms of Order XLVII, rule 7, C.P.C, because against the order rejecting a review application, an appeal is not maintainable. In support of the above, reliance is placed on the following case law:--
(i) 1986 SCMR 1478, (ii) AIR 1992 Gauhati 787 and (iii) 1979 CLC 823 ' It is further elaborated, that Order XLVII, rule 7, C.P.C, is a special provision relating or review and prevails over the general statute of section 3, of the C Law Reforms Ordinance, 1972, being based on the principle/premise that special Law will prevail over the general law. In support thereof, reliance is placed upon 2002 CLC 1584 (ii)2005 YLR 1292 (iii) 1196 SCMR 826 (iv) 1999 MLD 30(v) PLD 2002 Karachi 83.
13. ' It is next urged that the counsel acting for a party has implied authority to withdraw or compromise a case in absence of any provision to the contrary laid down in the power (Vakalatnama). This rule is supported from the following case law (I) 2001 MLD 568(11) AIR 1930 PC 158(111) AIR 1975 S.C. 2002(iv) AIR 1969 Bombay 20.
14. ' We have considered the arguments advanced at bar, and perused the record of the case.
15. ' Over all, review of the case-law suggests that learned single Judge did not err in law by allowing the appellants to withdraw the suit against the respondents Nos.3 and 4. Consequently, review application was dismissed. It is to be realized that the appellant need not apply for withdrawal nor does he need permission from the Court for withdrawing his suit, neither an order allowing recognizing or confirming the withdrawal necessitated. We are not impressed with the plea that the opposite party has practised fraud in withdrawal of the suit, as the learned single Judge allowed the withdrawal and consequently, dismissed the review application filed on behalf of the appellant. In the absence of express authority in favour of counsel appearing for the appellant, the withdrawal cannot be held as null and void.
16. ' The counsel for the respondent Nos. 3 and 4 has filed a statement that if in Suit No,374/1992, appellants, claim a sum of Re.1 then respondents Nos.3 and 4 will agree to recalling of the order dated 5-4-2005, passed in the suit. This was declined by the appellant's counsel on the basis of the implication of the withdrawal of the suit against the interest of the appellant to drop the claim against respondents Nos. 3 and 4 on the basis of attributed statement.
17. ' We are convinced that appellant has failed to make out a case warranting interference in the impugned order. Consequently, the appeal is dismissed, and parties are left to bear their costs.