' MUHAMMAD SAIR ALI, J.---The questions that arise for determination in this case are as under:--
(i) Whether the respondents-plaintiffs had an absolute/unqualified right to seek unconditional withdrawal of their suit under sub-rule (1) of Rule (1) of Order XXIII, C.P.C. When similarly positioned and circumstanced petitioners-defendants, along with the plaintiffs, also claimed equal rights in the suit property through inheritance as LRs of the deceased;
(ii) Whether the Court could and should have declined the request for unconditional withdrawal of the suit by the respondent-plaintiffs in the circumstances of this case; and
(iii) Should the petitioners before this Court, who were defendants in the suit, have been and be interposed as the plaintiffs in the suit, being LRs of the original deceased plaintiff, like respondents Nos.1 to 8.
2. The circumstances and facts in which the above questions arose, are by and large undisputed.
Ninety nine years lease for land measuring 250 acres was granted to Mr. A.M. Qureshi, i,e, an educationist (now deceased), for constructing, setting up and operating a non-profit public school etc. On the leased land through order dated 10-10-1963 of the Deputy Commissioner. This land (measuring 250 Acres) was situated in Class No,21, Scheme 33, Sector 34-A, 35-A and 36-A/3, Deh Dozan, Taluka and District East now Malir, Karachi. The physical possession of the land was handed over the lessee/allottee. The Sanad of Lease was issued on 14-1-1965.
On 7-1-1976, the Deputy Commissioner cancelled the lease of the said land. After some proceedings before the Revenue Authorities, Mr. A. M. Qureshi (the original plaintiff) on 20-8-1979 filed Civil Suit No,661 of 1979 for declaration, perpetual and mandatory injunction before the Honourable High Court of Sindh at Karachi. The High Court through an ad-interim injunctive order restrained the defendants from dispossessing the plaintiff and interfering with his enjoyment of the suit-land. The ad-interim order was confirmed on 22-11-1981. Application of the respondent Government functionaries for vacation of the injunction was dismissed on 14-5-1985.
3. During pendency of the suit, the original plaintiff died on 22-6-1989. He was survived by the petitioners and respondent No,16 etc. i,e, his children from his first pre-deceased wife i,e, Mrs. Kulsoom Bibi and respondents Nos.1 to 8 i,e, his children from his second wife namely Mrs. Hafeezun-Nisa (hereinafter respectively referred to as the first set of LRs and the second set of LRs).
The respondent No,17 also claimed to be legal heirs of Mr. M.A. Qureshi.
4. After death of the original plaintiff, the second set of LRs i,e, the respondents Nos.1 to 8 along with their mother Hafeezun-Nisa Qureshi, through application dated 24-8-1989 sought their impleadment in the suit as the plaintiffs but without mentioning the existence, the names and the right of first set of LRs, This application was allowed by Sindh High Court on 10-9-1989. The respondents Nos.1 to 8 and Begum Hafeezun-Nisa were substituted as the plaintiffs in the suit.
(Begum Hafeezun-Nisa also died on 30-11-1996).
5. In the meanwhile Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Got the exchange of their private land with a part of the suit-land, approved from the then Chief Minister Sindh through orders dated 26-1-1992 and 17-2-1992 respectively. This exchange was in violation of stay order granted by the Court. On contempt petitions, the said exchange orders were recalled and respondent No,9 i,e,, Province of Sindh filed a statement dated 7-2-1995 confirming that the original allotment dated 10- 10-1963 in favour of the original plaintiff would remain in field on the original terms and conditions.
Being aggrieved of these orders Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Filed Civil Suit No,709 of 1993 and C.P. No,D-830 of 1994 respectively.
6. In early 1996 through applications, the substituted plaintiffs i,e, respondents Nos.1 to 8 out of 250 Acres of the suit-land, sought to relinquish their claim on about 24 Acres and about 114 Acres respectively, in favour of Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Through orders dated 9-7-1996 and 16-10-1996 these applications for the abandonment/ relinquishment of claim on part of the suit-land were allowed by the Court.
7. An amended plaint was therefore filed by respondents Nos.1 to 8 but again without mentioning or impleading the first set of LRs of the original plaintiff.
8. On 26-7-1999, allegedly on gaining knowledge, Mrs. Afroze Shah and Mst. Mumtaz (of the first set of LRs) applied to be impleaded as the plaintiffs along with respondents Nos.1 to 8 (the second set of LRs) who did not file contesting reply or counter affidavit to oppose this application. Through order dated 29-11-1999 Court allowed this petition for impleadment of petitioners but as the defendants in the suit. They sought review of this order and prayed for their impleadment as the plaintiffs instead of the defendants. The Court by order dated 9-2-2000 without ruling on the entitlement of the petitioners to be impleaded as the plaintiffs, ordered to implead Khalid Qureshi and Muhammad Hussain Qureshi (of first set of LRs) also as the defendants in the suit.
9. On 24-4-2006, petitioners filed applications i,e,
(i) For amendment of plaint under Order VI, Rule 17, C.P.C;
(ii) For their transposition as plaintiffs under Order I, Rule 10, C.P.C.
' The above applications remained pending decision by the trial Court.
10. On 4-11-2006 petitioners as defendant Nos.8 and 10 filed an application under Order XII Rule 6 read with section 151, C.P.C. For a decree on the basis of government's statement dated 7-2-1995.
This application also remained pending adjudication by the trial Court.
11. The suit thus continued though on enhancement of the pecuniary jurisdiction of the High Court, this suit had been transferred to the civil Court vide order dated 10-4-2006.
12. On 3-2-2007 respondents Nos.1 to 8 as the plaintiffs filed an, application, for withdrawal of the suit with leave to file a fresh suit for the reasons of:--
(a) Formal defects;
(b) Change in ground realities;
(c) Abandonment by them as the plaintiffs of part of the claim on the suit-land;
(d) Absence of conflicting claims of the suit parties; and
(e) Complications;
13. However, on 9-3-2007, Advocate of the plaintiffs (respondents Nos.1 to 8) filed a statement to seek unconditional withdrawal of the suit instead of withdrawal with leave to re-file the suit.
14. The petitioners through a detailed reply and counter affidavit contested request for withdrawal of the suit on the grounds of:-- (0 Being co-owners of the lease hold rights of the undivided suit-land as LRs of the late A.M.
Qureshi;
(ii) Withdrawal being prejudicial and injurious to their legitimate interests and rights;
(iii) Withdrawal being mala fide and conspiratorial;
(iv) Pendency of their applications including for a decree and also for transposition as the plaintiffs in the suit on the basis of Central Government v. Suleman Khan and others (PLD 1992 SC 590) as both sets of LRs of A.M. Qureshi had equal right to inherit the suit-land measuring 250 Acres;
(v) Relinquishment of 138 Acres; a substantial part of the land and withdrawal of the suit being sequentially collusive, defeative of the vested rights of the petitioners and to cause them irreparable injury; and
(vi) Adjudication of suit be made on merits on substitution of respondents Nos.1 to 8 as the defendants for their request to withdraw the suit and transposition of the petitioners as the plaintiffs thereof.
15. By order dated 24-3-2007, the learned trial Court, dismissed the suit as withdrawn in a routine matter holding the objections in the counter affidavit of the petitioners as without substance but without adverting to, dealing with or deciding the objections stating that none appeared for the petitioners.
16. The petitioners filed a revision petition before 1st Additional District Judge, Malir, Karachi against the above order of the trial Court. The revision petition was disposed of by order dated 26-7-2007 by the revisional Court holding that:-
(i) since the suit was filed by respondents Nos.1 to 8, (erroneous assumption) therefore their application for withdrawing the suit was rightly allowed by order dated 24-3-2007 by the trial Court.
(ii) Petitioners may file a fresh suit within 30 days of the order.
17. The petitioners filed Constitutional Petition No,D-1620 of 2007 before the Sindh High Court against the above said orders. A learned Division Bench of the High Court dismissed this petition through the impugned judgment dated 10-9-2008.
18. After detailed narration of above facts Mr. Wasim Sajjad learned Senior Advocate Supreme Court for the appellants emphasized that chronological narration of facts ipso-facto disclosed mala fides of respondents Nos.1 to 8 whose object was to deprive the appellants etc. Of their share in the property and to injure them for being the children of the first wife of late M.A. Qureshi. Further that non-disclosure of the existence and names of the first set of L.Rs, by respondents Nos.1 to 8 at various stages was with object to keep them out of inheritance hence the clandestine relinquishment of claim over substantial piece of the suit-land as well as illegal mala fide and unnecessary withdrawal of the suit to protect the unlawful abandonment of claim of part of the suit-land. Also stated that on the above grounds the learned trial Court as well as other Courts should have declined unconditional withdrawal of the suit and should have interposed the first set of LRs as the plaintiffs and the second set of the LRs as the defendants. Reliance was place upon the case of PLD 1992 SC 590/591, PLD 2003 SC 979, PLD 2002 SC 1111 and 2004 SCMR 948.
19. Mr. Rashid A. Rizvi, learned Senior Advocate Supreme Court appearing for respondents Nos.1, 3 and 4 contended that respondents Nos.1 to 8 being plaintiffs of the suit had unconditional right to abandon their claim on part or the whole of the suit-land and also to withdraw the suit. Further that it was not a suit for administration where one or the other set of LRs, could be interposed in place of each other. As respondents Nos.1 to 8 had opted to unconditionally withdraw their suit therefore Court had no jurisdiction to decline such withdrawal. Further contended that before the unconditional withdrawal of the suit, respondents Nos.1 to 8 had filed their fresh suit for the reduced suit-land i,e, 112 acres after abandoning their claim over 138 Acres of the suit-land. And provisions regarding preclusion under Sub-Rule 3 of Rule 1 of Order XXIII, C.P.C. Did not apply. And the freshly filed second suit was pending before the Sindh High Court at Karachi. Also that the petitioners had also filed suit after the judgment of the Additional District Judge wherefor they were estopped from challenging the unconditional withdrawal of the original suit. He emphasized that only petitioner No,1 had challenged the withdrawal in revision/writ and now only two out of four LRs, from the first set of LRs were before this Court. He referred PLD 1983 SC 344/350, PLD 1977 Karachi 933/936 and PLD 2004 SC (Azad Jummu and Kashmir)
1. He also contended that the first set of LRs having been correctly impleaded as defendants and also losing their review application could not seek transposition thereof as plaintiff.
' He conceded that the first set of L. Rs, was the children of the late A.M. Qureshi and was entitled to inherit from his estate but contended that they had no right to challenge the relinquishment of part of the land by the second set of LRs and that they were entitled to prosecute the suit only to the extent of 112 Acres.
20. Mr. Munir A. Malik, learned Advocate Supreme Court for respondents No,5, 7 and 8 supporting the submissions of Mr. Rashid A. Rizvi added that first set of L.Rs, cannot make the second set of L.Rs, as hostage to their will and choice in prosecuting the original suit. He further stated that first set of LRs together having four shares in all were entitled to at maximum 56 Acres of land while the second set of LRs, held 14 shares and were thus entitled to 194 Acres of land, therefore, relinquishment of 138 Acres by the respondents Nos.1 to 8 as plaintiffs be treated to have been abandoned from their own share of the suit-land without affecting the share ratio or entitlement 'of the first set of LRs, And that the suit was chose in action and the right thereto was heritable. He also placed reliance upon the case of (PLD 2003 SC 979/991) to contend that it is only in case of fraud or misrepresentation etc. That unconditional withdrawal could be declined. Also insisted that on relinquishment of the part of their share by respondents Nos.1 to 8 as plaintiffs, the first set of LRs/petitioners could litigate only for the remaining land and not more.
21. Raja Abdul Ghafoor, learned Advocate Supreme Court appearing for respondent No,9 supported the statement filed by the official respondents before the learned trial Court in the suit and thus rested his case.
22. Learned Advocate Supreme Court appearing for cooperative Societies supported their representations made before the trial Court.
23 The learned Advocate Supreme Court appearing for respondent No,6 namely Altaf Qureshi from the second set of the LRs and a plaintiff, clearly and categorically stated that respondent No,6 as a plaintiff' in the suit, he neither filed any application or affidavit for withdrawal of the suit nor did he sign any such application or affidavit nor did he instruct or agree to such withdrawal. And that the order of the withdrawal was illegal, mala fide and wrong. Further that application of withdrawal was purported to be for all the plaintiffs i,e, respondents Nos.1 to 8 but affidavit along therewith was only filed by one plaintiff which proved that he did not participate in the withdrawal proceedings.
He thus joined the petitioners to seek setting aside the order of withdrawal of the suit and for revival of the original suit.
24. Mr. Rashid A. Rizvi, Seniorr Advocate Supreme Court and Mr. Munir A. Malik, Senior Advocate Supreme Court for respondents however after Full Arguments offered that their clients were ready to concede to setting aside of the order of withdrawal and restoration of the suit and interposition of the First Set of LRs as the plaintiffs of the original suit provided that the claim relinquished / Abandoned by respondents Nos.1 to 8 as the plaintiffs over 138 acres of the suit-land be kept undisturbed and the petitioners agree to prosecute the case for remaining 112 acres of the land only.
' This offer was not accepted by the petitioners.
25. Heard the learned Advocates Supreme Court for the parties. Record examined. Facts herein involved have concisely been recounted above to bring out the litigated questions arising before us in the peculiar perspective of the present case.
26. The original suit was filed for declaration, perpetual injunction and mandatory injunction by late Mr. A. M. Qureshi (the original plaintiff) against Deputy .Commissioner (East), Government of Sindh in the Revenue Department, KDA, Karachi Water Management Board, Capital Co-operative Housing Society and Commissioner of Karachi. The cause of action was stated to have arisen on 20-7-1979 when Deputy Commissioner (East) Karachi threatened to eject the original plaintiff by use of force and the other defendants acted thereunder. Decree of declaration was sought qua subsistence of lease of 250 Acres of suit land in favour of the original plaintiff. Perpetual injunction was prayed for restraining the defendants from interference in or disturbance of original plaintiff's possession thereof. Mandatory injunction was requested against Karachi Water Management Board for supply of water to the project.
27. The original suit was principally against the Government, its agencies and functionaries to protect the plaintiff's title to the lease hold rights of the suit land and his possession thereupon.
28. Since initiation of the original suit in 1979 till date, despite repeated amendments and multiple proceedings for 30 years, the basic nature, structure and character of the subject-matter of the suit continued to be the same i,e, protection and preservation of the plaintiffs' lease hold and possessory rights in the suit land as against the invasion of the original defendants and those claiming under them either denying or interested to deny the title or right of the original plaintiff.
Sections 42, 54 and 56 of the Specific Relief Act were invoked for a decree of declaration, perpetual and mandatory injunctions to prevent breach of defendants obligation (if established) existing in favour of the plaintiff against the purported invasion or threat of invasion by the defendants to plaintiff's right to and enjoyment of the suit property and to compel performance by such defendants of the their respective obligations. The long drawn legal battle of the original plaintiff and the substituted plaintiffs was essentially thus against the above referred defendants.
29. The matter reaching this Court does not involve adjudication of the above said main cause or its merits. The litigated questions before us involve issues arising collaterally and on trivialities between LRs of the original plaintiff i,e, late Mr. A.M. Qureshi. Non-disputes have been enlarged into un-necessary disputes by the two sets of LRs of the original plaintiff who are not pitched against each other on the real subject-matter of suit qua lease, it revival and preservation.
30. During pendency of the suit, the original plaintiff died on 22-6-1989. As above detailed, he was survived by two sets of LRs, The second set of LRs i,e, the respondents Nos.1 to 8 along with their mother Hafeezunisa Qureshi; on their application, were substituted as the plaintiffs in the suit (Begum Hafiz-un-Nisa also died on 30-11-1996). In early 1996, the substituted plaintiffs relinquished their claim on about 138 Acres of the suit land respectively in favour of Mst. Murad Bibi etc. And Mst.
Noor Bibi etc. Through orders dated 9-7-1996 and 16-10-1996 these applications for the relinquishment of claim on part of the suit land were allowed by the Court. An amended plaint was therefore filed by respondents Nos.1 to 8 but again without mentioning or impleading the first set of LRs of the original plaintiff.
31. On 26-7-1999, allegedly on gaining knowledge, Mst. Afroze Shah and Mst. Mumtaz (of the first set of LRs) applied to be impleaded as the plaintiffs along with respondents Nos.1 to 8 who did not oppose/contest the request. The Court however by order dated 29-11-1999 impleaded petitioners/first set of LRs as the defendants in the suit. Their review thereagainst was also disposed of. The petitioners etc. On their impleadment asserted their right, being co-owners in the lease hold rights of the entire suit land, to the relinquished 138 Acres of land as well. Hence the inter se disputes between the said two sets of LRs of the original plaintiff i,e, late Mr. A.M. Qureshi aggravated on issues as well non-issues.
32. Ostensibly to save their above transaction of relinquishment of 138 Acres of the suit land, respondents No,1 to 8 as the plaintiffs unconditionally withdraw the suit which was accordingly dismissed as discussed in paras. 8 to 10 above. On this unconditional withdrawal, petitioners felt legally and factually injured as the co-owners in the lease hold rights of the un-divided suit land.
They challenged trial Court's order allowing the unconditional withdrawal of the suit by respondents Nos.1 to 8 firstly in revision and then in a constitutional petition. Having lost the said proceedings, the present leave petition was filed for out consideration.
33. We note that none of the contending sets of LRs deny each others vested rights in the inheritance of the estate of the original plaintiff or their respective share proportions. They are not at variance on their respective rights and interests in the suit property. They also do not allege invasion, breach, denial or threat to their respective rights to inheritance under "Mohammadan Law". They in fact expressly admit each other's rights and shares as the LRs of the original plaintiffs.
They are as such equal in status and identical in position. They are at par. None claims or contends superiority of right over the other.
34. Despite this equality, respondents Nos.1 to 8 as the substituted plaintiffs vainly tried to gain some edge over the LRs of the original plaintiff from his first wife Mst. Kulsoom Bibi. On death of the original plaintiff, they opted not to disclose the existence and names of the first set of LRs for impleadment along with them as parties to the suit. During prosecution of the suit, respondents Nos.1 to 8 as the substitute plaintiffs unilaterally abandoned their claim on 138 Acres of the suit property under some arrangement (not filed) with Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Who were strangers to the family and the suit. Thereatter they as plaintiffs sought conditional withdrawal of the suit but then on filing a fresh suit only for the remaining 112 Acres of land unconditionally withdrew of the original suit. These acts of the said respondents were incompatible with equal co-existence and parity of rights of the two sets of the LRs; both of whom had become co-owners in the estate of the deceased Mr. A. M. Qureshi. These actions were palpable invasion and breach of the vested rights of the petitioners and thus naturally caused legal, factual and social injury to them.
35. We believe that the petitioners legitimately claim to have gained vested rights in the suit proceedings as well as the suit property whereabout the Government etc. Made positive representations, concessions and admissions. Further that the diverse litigation undeniably produced consequences for and against the suit parties and between the two sets of LRs of the original plaintiff. During the suit respective claims were firmly setup, conclusively pleaded, elaborately evidenced and finally positioned by the parties. Thirty years complex and contentions litigation during trial, appeals and petitions etc. Crystallized into orders, judgments, processes and proceedings that injuncted, protected, preserved and defined undertakings, rights, interests and status of all.Under these circumstances we agree with Mr. Wasim Sajjad, Senior Advocate Supreme Court for the petitioners that absolute right of the plaintiffs to un-conditionally withdraw the original suit was exercised with mala fides intended to defeat the valuable rights of the first set of the LRs i,e, the petitioners etc. And such withdrawal of the suit should not have been permitted.
36. Withdrawal of a suit conditionally or unconditionally is provided for in Rule 1 of Order XXIII of Civil Procedure Code 1908. These provisions allow unconditional withdrawal of the suit or abandonment of part of the claim by a plaintiff under sub-rule (1) of Rule (1) of Order XXIII. Conditional withdrawal for the reasons of 'formal defect' or 'other sufficient grounds' with permission to file a fresh suit for the subject-matter of the suit is governed by sub-rule (2) of Rule (1) of Order XXIII, C.P.C. Sub-Rule
(3) thereof provides that where the plaintiff withdraws a suit un-conditionally under sub-Rule (1) ibid or withdraws from a suit or abandons part of the claim, without Court's permission under sub- rule (2) ibid, 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. Under sub-rule
(4) Court has no jurisdiction to permit one of the several plaintiffs to withdraw without consent of the others.
37. In both the above situations i,e, under sub-rule (1) and (2) the suit terminates. The consequences however are different. Under sub-rule (1) read with sub-rule (3), on unconditional withdrawal of the suit, the plaintiff loses the right to file a fresh suit on the same subject-matter or claim. Upon withdrawal with leave under sub-rule (2), the plaintiff can institute a fresh suit in respect of the subject-matter of the same suit or claim.
38. In this case respondents Nos.1 to 8 as the plaintiffs initially sought withdrawal of suit with permission to re-file the suit but after filing a fresh suit for part of the suit land, the original suit was sought to be unconditionally withdrawn under sub-rule (1) of Rule (1) of Order XXIII, C.P.C. The request of withdrawal was contested by the petitioners on the grounds set out in para.9 above. The learned trial Court, without adverting to, dealing with or deciding the objections in the contesting reply and counter affidavit, proceeded routinely and mechanically to dismiss the suit as un- conditionally withdrawn by holding objections to be of "no substance". It appears that because of the absence of the counsel for the petitioners, the trial Court dismissed the objections but evidently without even bothering to read the same. Had the same been comprehended and considered by the trial Court, could the result have been different irrespective of the petitioners' absence.
39. The provisions of law as contained in Sub-Rule (1) of Order XXIII, C.P.C. Are substantive as well as procedural. These provisions legislatively recognize the right and privilege innate in a plaintiff. He has undisputable, indefeasible and absolute right to file and to withdraw his suit "at any time". It is the privileged domain of the plaintiff to exclusively decide:--
(i) To bring the suit and continue it;
(ii) To withdraw the suit;
(iii) To withdraw the suit unconditionally or conditionally;
(iv) When to withdraw the suit;
(v) Whether to withdraw part of the claim or whole of the claim in the suit; and
(vi) Against which of the defendants to withdraw the suit in case of plurality of the defendants.
' The plaintiff thus enjoys the choice of the time and stage of withdrawal as well. A plaintiff is also vested with the right to partly withdraw his claim or wholly as against all or any of the defendants.
Sub-Rule (3), however, exposes him to two consequences (i) liability to pay costs if awarded and
(ii) bar/preclusion to bring a fresh suit on the same cause of action/subject-matter.
40. No other persons or suit party or even the court has such a right or power to withdraw the suit or force a plaintiff to withdraw from the suit. It is in this respect that plaintiff has an unqualified absolute right.
' Attached with the absolute and unconditional right to withdraw the suit is the power to exercise right. The right to withdraw is governed and regulated by the law. Exercise of such right is thus also to be regulated and governed by the principles of law. Power thereto will have to be ceded to the court which is jurisdictionally seized with the control and regulation of the suit and its proceedings.
Plaintiffs' absolute right of unconditional withdrawal of the suit when exercised will be subject to courts' superintendence and scrutiny to adjudge upon the equity, propriety, legality and appropriateness of the exercise of this right by the plaintiff.
41. On exercise of this unqualified right, when a plaintiff requests the court to terminate the suit as withdrawn, it is then that the duty of the court having control of the suit and its proceedings, arises.
The court on consideration of the facts, proceedings and stage of the suit applies the test of its 'due consideration' to decide whether the plaintiff has exercised his absolute right properly or improperly. And whether suit is to be terminated as withdrawn or is to be continued by rejecting prayer for unconditional withdrawal. Such power of consideration by the court has nexus with plaintiff's absolute right to bring a suit. On suit being brought to it, the court is duty bound to examine the plaint to decide whether the same is proceedable or rejectable for grounds under Order VII, Rule 11, C.P.C. And whether the suit is sustainable or not under the law of limitation or jurisdiction or for diverse reasons provided in the law. Similarly on exercise of the right of withdrawal by a plaintiff,the court is to examine the proprietary, legality and appropriateness of B such exercise. We would beneficially like to reproduce a quote from "Zaman Cement Company Pvt.
Ltd. v. Central Board of Revenue and others" 2002 SCMR 312 read with "Asadullha Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 that "a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and C circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights.
42. Considering the characteristics and the contingencies peculiar to the exercise of a plaintiff's right unconditionally withdraw, limitations have been placed by the courts. These limitations find their genesis in extraordinary situation(s) that may prevail in a case. A plaintiff is absolutely free to stretch his arm, muscle or nose. This freedom ends where plaintiffs' arm, muscle or nose touches the other persons arm, muscle or nose. Flexing the power of withdrawal by the plaintiff ends when it injures or affects or prejudices the vested rights or interests accruing from or gained in or during the suit proceedings by the defendant(s) or the third parties. The law has since been so developed.
43. We are conscious that while examining the appropriateness of the exercise of absolute right and unconditional power of the plaintiff to withdraw a suit, we cannot limit the exercise of such right to circumvent, abridge, scuttle or destroy the right that the law grants to a plaintiff. The courts therefore in all such cases recognizing plaintiffs absolute right, abstained from injuncting its exercise in general in cases where none was injured. The object was to regulate the exercise of such absolute right for the balanced administration of justice than to destroy the right. Case-law therefore developed the rule of extra ordinary caution parallel with defining the scope of principles on refusing unconditional withdrawal of a suit. Emphasizing the exclusivity of a plaintiff's right, some restrictions, conditions and limitations were placed on the exercise of such right by the courts on case to case basis, in keeping with the jurisdictional control and the principles of the even administration of justice. The field however remains open for further development. Only a few cases on the subject are referred to hereunder. The underlining or the marks have been added by us only to highlight the statements.
44. In the case of "Amjad Rashid Khan Malik v. Mrs. Shahida Naeem Malik and others" 1992 SCMR 485, this Court recounted some of the events where unconditional withdrawal of the suit could be refused, it was held that:- "3. Order XXIII, Rule 1, confers a right in the plaintiff to withdraw the suit at any time after the institution against all or any of the defendants. He can withdraw or abandon the entire or part of claim. However, this general rule will not apply in cases where a preliminary decree has been passed in pursuance of such a decree a third party interest has been created with shall be adversely affected. In such circumstances the right to withdraw the suit cannot be exercised without the consent of such third party. In Hulas Rai Baijnath v. K.B. Bass and Co. Ltd. AIR 1963 Allahabad 368 it was held that in the absence of a preliminary decree or award or compromise, obviously it is open to the plaintiff to withdraw the suit. In Sirajuddin v. Mst. Amtul Rauf PLD 1977 Karachi 933, it was observed that although the plaintiff cannot be forced to withdraw the suit but the Court has the discretion to refuse the termination of the proceedings in cases where the defendant has acquired valuable rights or in cases where the same affect the rights of others or in cases where the parties arrayed as defendants are also plaintiffs in the proceedings so that a decree in their favour must necessarily be passed if the suit culminates in judgment.
4. It is, thus, clear that under Order XXIII, Rule 1, C.P.C. The plaintiff does not have a right to withdraw the suit at his own free will affecting the rights of the defendants and also the rights of third parties which might have been created by or arising from the orders passed or proceedings taken in the suit.
' It was further held that "the plaintiffs took many steps to frustrate the sale and they did not succeed even up to the Supreme Court. Therefore, in order to achieve their and Amjad Rashid Khan filed application under Order XXIII, Rule 1, C.P.C. so that the suit may be allowed to be withdrawn and preliminary decree bet set aside. This could not have been done for the simple reason that Atiya Begum's bid to purchase the house was accepted by the Court. The entire exercise by the petitioners was merely to frustrate the sale which was to be effected in pursuance of the preliminary decree".
45. In the case of "Haji Muhammad Boota and others v. Member (Revenue), Punjab and others" PLD 2003 SC 979, though the provisions of sub-rules (1) and (2) of Rule 1 of Order XXIII, C.P.C. Were at times discussed interchangeably as case did not call for the distinction in the two sub-rules, yet the judgment elaborately discussed the restrictions on the right of withdrawal of a suit by the plaintiff under the provisions of Order XXIII, C.P.C. It was held that:- --- Withdrawal " is not an absolute right and is subject to certain limitations based on the principles that where third parties have acquired a right, there can be no withdrawal to their prejudice. ...
' Where the nature of suit/proceeding is such that both plaintiff and defendant may be entitled to relief in the case", ' Withdrawal "if it results in perpetuating fraud or injustice".
' If a third party had acquired a right out of the judgments impugned like where the proceedings under Article 172 of the Constitution for the escheatment of the disputed property were taken to accrue valuable right in the Provincial Government under Constitutional mandate and the same could not have been frustrated by the withdrawal of the appeal.
"When it has the effect of depriving the defendant of the benefit of the lower Court's adjudication in his favour" Mst. Noor Bhari and others v. Mapal Khan and others 1994 Lah Notes 101.
46. In the case of "Javaid Iqbal Abbasi and Company v:Province of Punjab and 6 others" 1996 SCMR 1433, this Court observed that:- "the right to withdraw suit unconditionally under Order XXIII, Rule 1, C.P.C. Is absolute in nature and that under no circumstances the Court would refuse such prayer. The Court may decline the request for unconditional withdrawal of a suit/proceedings:-- ' Where the nature of suit/proceedings is such that both plaintiff and defendant may be entitled to relief in the case. For instance in a suit for administration, for a suit for accounts or a suit for partition of the property the plaintiff cannot claim absolute right to withdraw the suit unconditionally, if the defendants opposed the prayer.Where the defendant after filing of the suit acquires a right in respect of the subject-matter of the suit, the plaintiff could not be allowed to withdraw the suit where the right acquired by defendant is likely to be defeated by withdrawal of the suit. Where the purpose of withdrawal of proceedings is only to prevent the Court from passing an order undoing a wrong or an injustice cone to a party or the withdrawal would deprive the Government or a public functionary, to receive or recover the public dues, or the withdrawal would otherwise defeat the ends of Justice, decline the prayer for withdrawal --- "Where all the parties are treated as plaintiffs, and defendants for the purpose of grant of relief or in a case where the grant of the same, would perpetuate injustice or fraud" Riaz Malik v. Arnina Parkah PLD 1988 Karachi 560.
47. The case of "Basudeb Naryan Singh and others petitioners v. Shesh Narayan Singh and others AIR 1979 PATNA 73 discussing the provisions records that:-- "The learned Judges of the Supreme Court held that the plaintiff could not be allowed to withdraw the suit after the defendant had gained or acquired the privilege of buying the share of the plaintiff in accordance with the provisions of S.3. Reliance was placed on the decision in the case of Tukaram Mahadu Tandel (1905) ILR 29 Born 13) (Supra). The learned judges referred to the following observation of Crump J;-- "But there are other and -wider considerations which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants' claim. It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another (O.XXIII, R.1(4)."
12. The principles which can be deduced out of the cases aforesaid are clearly the following.
(1) The plaintiff under sub-rule (1) of Rule 1 of Order XXIII of the Code has a right to withdraw a suit at any stage; (2) that such a right of the plaintiff is limited to the extent that it does not result in defeating a right which has already vested in the defendant, such a right may have become vested in the defendant either on account of a compromise or a concession or a decree or an award on similar circumstances. (3) that in a partition suit every defendant is virtually in the position of a plaintiff, his claim being founded on a claim similar to that of the plaintiff;. And (4) that O.XXIII, R.I, sub-rule (1) of the Code applies even to a partition suit, subject to the aforesaid limitation.
13. In this connection the plaintiffs gave an undertaking that they would not transfer any of the properties during the pendency of the suit. The Court appointed a receiver and thus the property could not be transferred legally by any of the parties to the suit.
' The question arises whether these circumstances vested in the defendant a right which would justify the refusal of the prayer for the plaintiffs to withdraw. It is true that under sub-rule (1) aforesaid, a plaintiff has a right to withdraw unconditionally, but after all it is a rule of procedure and it is well settled that procedure is to aid justice and not to defeat it. It is for this reason that Crump J, said that there are wider considerations involved in the matter and this dictum of Crump J, was adopted by the Supreme Court in the case of R. Ramamurthi Aiyar (AIR 1973 SC 643) (supra).
Therefore, consideration of justice and equity have to be kept in view before granting the prayer of a plaintiff to withdraw from a suit. Now what would be the result if the plaintiff is allowed to withdraw from the present suit. The result will be that the receiver will cease to exist, the property may be wasted or transferred by the plaintif inasmuch as she waived the right of maintenance on account of the grant of the right of receivership.
' It is clear that by the order of appointment of receivership the property had been taken out of the possession of the parties. By the order of the Court thus the right of the defendant not to allow the plaintiffs to waste the property had vested in her and this right would undoubtedly be defeated. I may emphasis at the risk of repetition that the undertaking given by the plaintiffs not to transfer the ro ert durin the endenc of the suit amounts to a concession in favour of the intervenor defendant, the advantage of which would be lost if the suit is allowed to be withdrawn. "
48. In the case of "Sahibzada Sharyer Khan and others v. Additional District Judge, Bahawalpur and others" 2004 CLC 1860 on survey of number of judgments, a learned Judge in chambers of Lahore High Court, Lahore drew a distinction between a simple withdrawal and withdrawal where during the suit proceedings, valuable rights had accrued to the defendants. It was held that:-- "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 he 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".
49. In the case of "Shamas-ud-Din and 4 others v. Mst. Sitran Begum alias Sitara Begum" 1993 MLD 962, a learned Judge in chamber of Lahore High Court, Lahore on elaborate analysis of the provisions of Order XXIII and law thereupon held that "in some instances, the Court was empowered to control act of the plaintiff and refuse termination of proceedings at his instance. Some of the instances of such cases were already quoted above. Similarly, in terms of sub-rule (3) a plaintiff by terminating the proceedings by an unconditional withdrawal of the suit was liable to pay costs to the other side. Rule gave power to the Court to determine the amount of costs. So, when the plaintiff applies or informs rot an unconditional withdrawal of the suit, it falls on the Court to consider, whether in view of the nature and stage of proceedings, plaintiff could be permitted to unconditionally withdraw and if he could, what were the amount of costs payable by him to the other side."
50. The case of "Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 relied upon by the respondents is on the principle that "a fresh suit already instituted and pending at the time of withdrawal of the earlier suit does not bar the fresh suit under the provisions of Order XXIII, Rule 1". There is no contest with this proposition. We are not considering this question here.
Similarly other cases referred to by the respondents are also not relevant The case of "Sheikh Abdul Aziz. v. Mirza and 3 others" PLD 1989 SC Azad Jammu and Kashmir 78 is on the subject of res judicata. "Karachi Water and Sewerage Board through Managing Director. v. Messrs M.A. Majeed Khan and 2 others" 2002 CLC 566 is a case of misjoinder, non-joinder and constitution of the suit while "Ghani v. Ude and others" AIR (29j 1942 Lahore 153) is mainly on the provisions of section 47 and Order XXI, Rule 90 read with section 60 etc. None of which are on the proposition herein involved.
51. In the present case, none disputed that thirty years litigation culminated into rights, interests, admissions, representations, legal/factual positions and admissions which crystallized into irreversible undertakings, orders, consequences and judgments giving rise to the vested rights and interests of the parties. Such rights, interests and positions were likely to be infringed or even defeated by discontinuance of the suit. Any of the two sets of LRs could be the plaintiffs or the defendants and the ultimate beneficiaries of the decree if passed. The suit therefor could not have been unconditionally withdrawn by the respondents Nos.1 to 8 as the plaintiffs.
52. The petitioners as LRs of the original plaintiff had a vested right to contest the cancellation of lease of the whole 250 Acres of the suit-land. The relinquishment of claims by plaintiffs i,e, respondents Nos.1 to 8 over approximately 138 Acres of the suit-land was evidently injuries to the rights of the first set of LRs i,e, petitioners etc. Upon whom the estate and heritable rights of Mr. A.M.
Qureshi had devolved along with respondents Nos.1 to 8. Their right to prosecution of the suit till final G adjudication on merits could not have been ignored by the learned trial Court who thus seriously erred at law by routinely dismissing the suit as withdrawn. And so did the Revisional Court and the honourable Judges of the High Court in upholding the trial Court's illegal order.
53. Cause of action in the original suit was common and joint to all the LRs of the original plaintiff against the original defendants. They could prosecute the suit jointly or severally. They could be plaintiffs or defendants having identical right, same cause of action and same interest to obtain the decree. Their claim as well as cause was identical. The transposition of the first set of LRs as the plaintiffs did not present any legal impediment. It could be for this reason that respondents Nos.1 to 8 as the plaintiffs did not oppose the request of first set of LRs to be impleaded as the co-plaintiffs.
The trial Court gave no reason for declining request of the first set of LRs to be so impleaded and for positioning them as the defendants of the suit. This Court in the case of "Haji Court in the case of "Haji Shaukat Hussain and 4 others v. Haji Muhammad Bakhsh and 13 others" 2004 SCMR 948, in almost an I identical case as in hand upheld the right of transposition of other LRs as the plaintiffs.
Referring the cases of Said Alam v. Raja Sohrab Khan 1970 SCMR 639, Central Government of Pakistan v. Suleman Khan PLD 1992 SC 590 and Uzin Export Import Enterprises v. Union Bank of Middle East Ltd. PLD 1994 SC 95, this Court in the case of "Rauf B. Kadri v. State Bank of Pakistan and another" PLD 2002 SC 1111 also held that:-- "Order 1, rule 10, C.P.C. Is very wide in its scope. The power to transpose is derived, amongst others, from the aforesaid provisions, which have always been interpreted liberally in the interest of complete adjudication of all the questions involved in lis and in order to avoid multiplicity of the proceedings. This power is invariably exercised generously and technical hurdles are always bypassed for considerations of effectual adjudication and inexpensive access to justice."
' Similarly in "Central Government of Pakistan and others v. Suleman Khan and others" PLD 1992 SC 590 it was opined that:-- "the power to transpose is to be exercised liberally and no technical hurdles considered so strong as to override the considerations of "adjudication" or right to justice. It is in that very context that when a defendant/respondent is transposed as plaintiff/appellant no question of limitation as such is involved.... ... ... ...What can be done under Order I, Rule lot C.P.C. For purpose of transposition on an oral request or specific application, can also be done by the Court concerned suo motu without any application."
55. The claim of respondent No,6 i,e, Altaf Qureshi before us that he neither agreed to nor signed or filed the application of conditional withdrawal or un-conditional withdrawal of the suit has not been controverted by any of the learned Advocates Supreme Court for the parities. It thus appears that one of the plaintiffs may not have withdrawn the suit The learned trial Court failed in its duty to examine as to which of the plaintiffs had sought unconditional withdrawal of the suit and who had not. A co-plaintiff opting not to withdraw had the unqualified right to continue the suit in case of unconditional withdrawal by the other plaintiffs from the suit.
' In view of what has been discussed above, this leave petition is accepted and converted into an appeal which is also allowed with costs throughout in the following terms:--
(i) The impugned orders dated 10-9-2008, 26-7-2007 and 24-3-2007 respectively passed by High Court of Sindh, Karachi, Additional District Judge, Malir and Senior Civil Judge, Malir Karachi are set aside. Application for unconditional withdrawal of the original suit shall stand dismissed.
(ii) The original suit is restored to its original number.
(iii) The first set of LRs i,e, the petitioners etc. Shall be transposed as the plaintiffs of the original suit.
As respondents Nos.1 to 8 had un-conditionally withdrawn the suit, they shall be allowed by the trial Court, option to continue as the co-plaintiffs or otherwise as the defendants in the original suit. The learned trial Court shall accordingly receive an amended plaint and proceed therefrom.
(iv) The learned trial Court shall decide all the pending applications within a period of two months after receipt of the amended plaint;
(v) The suit shall also be finally decided within a period of seven months after receipt of the amended plaint; ,
(vi) The learned trial Court or the relevant Court, on hearing the parties, shall consider either staying the suit(s) filed by the parties in respect of the subject matter of the original suit or a part thereof, under section 10, C.P.C. Or consolidating the same with the original suit, in accordance with law, equity and justice. Any of the parties may file application(s) thereto to take steps necessary to facilitate such decision by the Court.
(vii) Till decision by the learned trial Court on (vi) above, the proceedings in the suits filed by the parties on the subject matter of the original suit shall remain stayed in the meanwhile.