JUDGMENT ABDUL WAHEED KHAN, J. Through this single judgment I intend to dispose of Writ Petition No.24651 of 2010 titled Mazhar Iqbal and others v. Qamar uz Zaman Bhatti and others and Writ Petition No.24652 of 2010 titled Mazhar Iqbal and others v. Qamar uz Zaman Bhatti and others because identical question of law and facts are involved in both the Constitutional petitions.
2. Khair Din, respondent No.1 filed three separate suits for declaration against the petitioners. His counsel Mr. Ghulam Sarwar Babar made statements in two suits on 28-11-2008, before Civil Court that the plaintiff had filed amended plaint in the connected (third) case by virtue of which his grievance stood redressed. There was no need to further proceed with the matters and suits be dismissed as withdrawn. He further stated that if the appellate court passes adverse orders, about the filing of amended plaints, he would reserve his right for, revival of the suits. Both the suits in respect of land situated in villages Choora Bohjia and Bairoon Kamalia were dismissed as withdrawn on the same day.
3. It is born out of the record that in the connected third suit, petition for amendment in the plaint was accepted vide order dated 19-9-2008. The petitioners/ defendants preferred revision petition against the said order before District Court which was accepted on 20-1-2009. The order dated 19- 9-2008 passed by Civil Court was set aside. The operative part thereof is as follows:- "So the respondent/plaintiff may move for consolidation of all the three suits and then learned trial court shall decide it on merits without being influenced by the findings on this revision petition.
Hence there is no need to amend the, plaint of one suit on the basis of prayer of identical nature in the other suits."
4. Respondent No.1/ plaintiff challenged the order dated 20-1-2009 passed by Additional District Judge, T.T.Singh through Writ Petition No.5992 of 2009. The same was disposed of vide order dated 28-7-2009, which is reproduced here-in under:-- "After having argued the case at some length, the learned counsel for the petitioner states that he will not press this petition if observation is made by this Court that the petitioner will move, an application for revival of two suits earlier withdrawn by him..
(2) Let the petitioner move such an application for revival of the aforesaid cases, the same will be decided after hearing the Respondents on merits and in accordance with law.
(3) On the basis of the aforesaid, this petition fructifies and disposed of as not pressed."
5. Respondent No.1 /plaintiff filed an application before the Civil Court, for restoration of both the aforementioned suits. The same was accepted vide order dated 3-5-2010 and the suits were restored. The petitioners/defendants filed revision petition before the District Court and same was dismissed vide order dated 11-10-2010, hence these petitions.
6. The contentions of the counsel for the petitioner are that the trial court, while dismissing these suits did not grant any permission to institute a fresh suit on the same cause of action, in respect of subject matter of the suits and that the trial court was not competent to permit the plaintiff, in the given circumstances of this case, to file a fresh suit on the same cause of action nor did it actually proceed to do so, and thus the impugned orders of both the courts, permitting restoration of the suits, be declared to have been passed without lawful authority and of no legal effect.
7. Conversely, the contentions of the counsel for the respondent No. 1/plaintiff are that these constitutional petitions are not maintainable, and that the petition for restoration of the suits was filed in pursuance of the order dated 28-7-2009 passed in Writ Petition No.5992 of 2009 and thus these petitions merit dismissal.
8. Arguments of the counsel for the parties have been heard and recorded sed. Admitted facts are that on 28- Ghulam Sarwar Baber Advocate counsel for the respondent. No.1/plaintiff made the following statement:- {{URDU TEXT}} On the same day, the Civil Court, dismissed the suits having been withdrawn. The same is re- produced as under:- {{URDU TEXT}} Y./.9. Order XXIII, C.P.C. Deals with the withdrawal and adjustment of suits which is re-produced as under:--
(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.
So a plaintiff may at any time, withdraw a suit or abandon part of his claim and the Court if satisfied that a suit must fail by reason of some formal defect, or there are other sufficient grounds, permits the withdrawal of suit with liberty to institute a fresh suit in respect of same subject matter.
10. The respondent filed an application for revival/restoration of suits. A suit can be revived or restored if its proceedings are stayed under section 10, C.P.C. Or it is dismissed for non-prosecution.
If a plaintiff withdraws from a suit or abandon part of a claim, without permission to file a fresh suit, he is precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. In the matters in hand, the counsel for the respondent No.1/plaintiff withdrew the suits, and the same were dismissed as withdrawn. Neither any request for permission to file fresh suits was made nor granted. The mere fact that the counsel for the respondent No.1/plaintiff made statement, reserving his right to get revived the suits, does not itself mean that the plaintiff is entitled for the revival or restoration of the suits. After withdrawal of the suits and dismissal of the same on 28-11-2008, the Civil Court became functus officio as there is nothing in the statute book, conferring power or jurisdiction to a civil court. To permit the revival of civil suit, having been dismissed as withdrawn.
11. For the reasons noted above, both the writ petitions are accepted and the impugned orders dated 3-5-2010 of the Civil Judge T.T.Singh and order dated 11-10-2010 passed by the Addl. District Judge, T.T. Singh are set aside having been passed without lawful authority and of no legal effect..