' M. TABASSUM AFTAB ALVI, J.--- The captioned appeal has been filed by the appellant-defendant against the impugned judgment passed by learned Additional District Judge, Muzaffarabad dated 12-8-2009, whereby while setting aside the order and decree dated 11-7-2009 passed by Civil Judge/Traffic Magistrate Muzaffarabad, the suit filed by respondent-plaintiff was remanded back to the trial Court consolidating with two other suits for a fresh decision.
2. Precise facts giving rise to the instant appeal are that appellant defendant purchased a piece of land bearing Survey No,578 min, measuring 3 Kanals, 17 Marlas situated in village Chatter Domail, Tehsil and District Muzaffarabad, from father or respondent-plaintiff through registered sale-deed dated 10-9-1984. It is claimed that after purchasing, the above land was brought in ownership and possession of appellant. It is further stated that father of respondent-plaintiff filed a suit for declaration and cancellation of the above sale deed due to non-payment of amount mentioned in the deed of sale. However, later on appellant paid full sale amount to father of respondent-plaintiff, hence, a compromise was effected between the parties. In this regard, father of respondent- plaintiff moved an application for withdrawal of suit on 1-9-1990 which was accordingly withdrawn and matter was settled between the parties. It is claimed that during earthquake of October, 2005, respondent-plaintiff for temporary shelter erected his tent in the disputed land when the appellant due to his business was settled in Middle East. It is further stated that respondent-plaintiff started illegal encroachment upon the suit land, however, with due process of law he was evicted. It is stated that respondent-plaintiff filed a suit, claiming ownership against appellant and pro forma respondent's above land, before the trial Court on 24-3-2008. The above mentioned suit was contested by the appellant-defendant who submitted detailed written statement. It is also claimed that once again respondent-plaintiff attempted encroachment on the land, therefore, appellant and other owners were constrained to file suit for perpetual injunctions.
3. The learned Civil Judge/Traffic Magistrate, Muzaffarabad framed issues and heard arguments on Issues Nos.1, 6 and 7 which were preliminary in nature. After hearing, the suit filed by respondent-plaintiff was dismissed as barred by law vide order dated 11-7-2009. Against the above mentioned order an appeal filed by respondent-plaintiff was accepted by the learned Additional District Judge Muzaffarabad vide impugned judgment dated 12-8-2009. Feeling aggrieved from the above judgment the instant appeal has been filed before this Court on 11-11-2009.
4. The learned counsel for appellant, Ch. Shoukat Aziz, Advocate, strenuously argued that suit land was purchased by appellant from father of respondent-plaintiff through registered sale on 10-9- 1984. Against the abovementioned sale deed a declaratory suit for cancellation of same on the ground of non-payment of sale amount was filed by father of respondent before Civil Judge Muzaffarabad on 29-9-1988. Later on, father of respondent after receiving sale amount, moved an application for compromise before trial Court on 1-9-1990, consequently, suit was withdrawn by father of respondent on 30-10-1990. The learned counsel submitted that after withdrawal of suit filed by father of respondent the subsequent suit filed by the contesting respondent-plaintiff was barred by Order XXIII of Civil Procedure Code, therefore, no illegality was committed by the trial Court, while dismissing the suit of respondent which important aspect lost consideration of the learned Additional District Judge Muzaffarabad. The learned counsel in support of his contention referred to and relied upon the following cases:---
(I) Muhammad Bakhsh v. Abid Hussain Shah and 6 others (1991 M LD 571),
(II) Muhammad Yousaf and 3 others v. Mst. Zubeda Begum and others (1993 M LD 2138) and
(III) Sahibzada Raja Muhammad Hanif Khan and another v. Sharif-UDin and others unreported judgment of this Court Civil Revision No,45 of 2010 dated 3-6-2010.
5. The learned counsel for contesting respondent, Muhammad Yaqoob Khan Mughal, Advocate while controverting arguments of learned counsel for appellant, submitted, that sale-deed in question was challenged by respondent-plaintiff as forged hence, suit filed by respondent was not hit by principle of estoppel. The learned counsel further submitted that appellant and others filed Suits for perpetual injunctions bearing No,36 of 2008 titled Farooq Ahmed and 4 others v.
Muhammad Maqbool before Civil Judge Muzaffarabad on 12-1-2008, apart from one more Suit bearing No,41 of 2008 titled Muhammad Shafi v. Muhammad Maqbool for land bearing. Survey No,1578 min, measuring 2 Kanals, 12 Marlas situated in Chatter Domil, before trial Court on 25-11- 2008, therefore, no illegality was committed by the learned Additional District Judge Muzaffarabad, while consolidating all the above suits and disposing the same after recording evidence on merit.
6. After hearing learned counsel for the parties at length, I have perused the contents of appeal and have also gone through the record.
7. A glance perusal of record reveals that father of respondent-plaintiff filed a Suit bearing No,528 of 1988 for declaration and cancellation of sale deed in question due to non-payment of sale amount of Rs,59000 before Sub-Judge Muzaffarabad on 29-9-1988. However, at later stage father of respondent moved an application for compromise on 1-9-1990. On receiving the above application, statement of father of respondent was also recorded by the trial Court on the same date i.e. 1-9-1990. It was stated by vendor that he had received Rs,59000 as sale amount of the disputed land. The respondent's father was identified by Khizzar Mahmood Qureshi Prosecuting Officer Muzaffarabad. The abovementioned application was also signed by brother of respondent namely Mehmood Khan son of Muhammad Ayyub Khan apart from 3 other witnesses. The suit filed by father of respondent was withdrawn on the basis of above compromise vide order dated 30-10- 1990. After withdrawal of abovementioned suit the subsequent suit filed by respondent-plaintiff was hit by Order XXIII rule (2) of Civil Procedure Code, therefore, no illegality was committed by the trial Court, while rejecting the plaint filed by respondent-plaintiff vide order dated 11-7-2009. The relevant law applicable to withdraw and adjustment of suits and to bring a fresh is prescribed under rule 1, Order XXIII, C.P.C. It postulates that 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 when the Court is satisfied (a) that the suit must fail due to some formal defect; or (b) that there are other sufficient grounds to allow the plaintiff to institute a fresh suit for the subject-matter of the suit or past of a claim. Unless a prayer for permission to bring a fresh suit was made the plaintiff was precluded from instituting any fresh suit in respect of same subject-matter or part of it. It is evident that in order to bring a fresh suit in respect of the subject of dispute, permission of the Court was a condition precedent. Moreover, the Court was enjoined upon to accord such permission on the satisfaction that the suit under consideration would fail due to some formal defect or withdrawal of the suit was justified in the light of the circumstances placed before the Court. Similar point was arisen before the apex Court in case of Karamat All Khan and others v.
Sardar All and 29 others PLD 2001 SC (AJ&K) at page 30 of the report it was observed by their A lordships of the Supreme Court as under:- "7. The plain reading of the above order shows that sub-rule (1) contemplates withdrawal of suit which can be done at any time without the prior permission of the Court, but under sub-rule (2) the plaintiff may on application withdraw from the suit with liberty to institute a fresh suit. Where he does not desire to institute a fresh suit he can withdraw his suit and permission to withdraw is not necessary. The object of rule is to prevent a plaintifffrom filing a fresh suit after having failed to conduct the first one with care and diligence. The plaintiff has the right to withdraw his suit whenever he desires but he cannot file a fresh suit on the same subject-matter unless a permission is sought for filing the fresh suit. In a case reported as Gul Sahib Din and others Vs. Sultan and others [PLD 1982 SC 254], it was observed by the Supreme Court of Pakistan at page 513 as fallows:--- "We have examined the contentions of the learned counsel and come to the conclusion that the application for permission to withdraw the suit contains no particulars regarding the formal defects in the suit, and all what was stated therein was that in the plaint there were formal defects which may result in detriment to the rights of the petitioneRs,"
' Thus, the order of High Court remanding the case being correct was not interfered with.
' In a case reported as Malang Dad v. Mst. Mahpari and others [PLD 1993 SC 6] it was observed at page 9 as fallows:--- "There cannot be any cavil with the proposition that if under Order XXIII, Rule 2, C.P.C. Permission to withdraw pending suit with the right to file a fresh suit, is granted to a plaintiff subject to payment of certain costs, it is a term on which such permission is granted and in the absence of fulfilment of the same, the suit is liable to be dismissed being incompetent as in the absence of payment of costs, there cannot be a proper suit before the Court."
' In a case reported as Chairman Municipal Committee v. Habibullah (PLD 1987 (AJK) 135] it was observed at page 27 of the report as under:- "It is evident from the language of Rule 1, Order XXIII, C. P. C. That Court enjoys vast power to permit withdrawal of the suit or part of it against all or any of the defendants in order to bring a fresh suit to avoid a formal defect which may ultimately affect the result of the suit or on account of some other sufficient grounds but at the same time, the power is to be exercised not at the pleasure and sweat will of the plaintiff but keeping in view the interests of the parties in order to do complete justice."
8. The order recorded by the trial Court dated 29-8-1988 explicitly shows that in the first instance as incorporated in the order that counsel for plaintiffs never wanted to withdraw the suit. Then the counsel for plaintiff moved an application that he be allowed to withdraw the suit if he is allowed to raise a plea of adverse possession in the subsequent suit. Needless to say that it was not disclosed by the counsel for the plaintiffs-respondents as to what were the formal defects in the former suit to the detriment of the plaintiffs. As it has been observed in a reported case of Supreme Court of Pakistan jurisdiction that an application for withdrawal of the suit with permission to file a fresh suit should not be vague and unfounded but it must specifically state the formal defects on account of which ultimately the suit is liable to be dismissed. On disclosure of formal defects there should be the satisfaction of the Court that in fact the defects pointed out or likely to adversely affect the case of the plaintiff that a permission to institute a fresh suit is granted by the Court. In the instant case neither there was a prayer on the part of plaintiffs- respondents that on account of formal defects in the former suit the permission may be granted to institute the fresh suit nor the permission to institute the fresh suit was granted to plaintiffs- respondents, thus in our considered view the first suit which was filed in 1975 stood withdrawn by the plaintiffs-respondents vide order of the trial Court dated 29-8-1988, while the subsequent suit filed in 1979 without seeking the permission of the Court to institute the fresh suit is hit by the provisions of Order XXIII sub-rule (3). In the instant case the subsequent suit was filed during the pendency of the former suit and the prayer for withdrawing the first suit was made after so may yeaRs, Even the prayer was for withdrawal of suit not to reinstitute the fresh suit but to introduce an amendment in the subsequent suit. The principle which we have laid down that in presence of first suit the subsequent suit without the permission of Court to reinstitute the first suit on the basis of formal defects squarely applies to cases which are being withdrawn. The provisions of Order XXIII, sub-rule (3) cannot be defeated by instituting a fresh suit before withdrawing the previously filed suit. It is well-settled principle of law that what is not allowed to be done directly cannot be allowed to be done indirectly. Therefore sub-rule (3) mentioned above applies to the present case."
8. In case titled Muhammad Aziz Khan v.. United Kashmir Flour Mills (Pvt.) Ltd. And 6 others PLD 2004 SC (AJ&K) at pages 10 and 11 of report it was held by the Hon'ble Supreme Court as follows:-- "Order XXIII, Rule 1 of the Code of Civil Procedure permits withdrawal of suits. Sub-rule (1) of Rule 1 of the aforesaid Order contemplates withdrawal of the suit which can be done at any time without prior permission of the Court but under sub-rule (2) of the said Order, the plaintiff may, on an application, withdraw from the suit with liberty to institute a fresh suit. Where he does not desire to institute a fresh suit, he can withdraw his suit and permission to withdraw is not necessary but where an application for withdrawal has been filed, the Court cannot decide the suit on merits.
The object of the rule is to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. Further in permitting a fresh suit, the rule seeks to prevent technicalities from defeating justice. The plaintiff has the right to withdraw his suit whenever he desires but cannot file a fresh suit on the same subject-matter."
9. Identical point was arose before Peshawar High Court in case titled Muhammad Bakhash v. Abid Hussain Shah and 6 others (1991 M LD 571). At page 575 of the report it was held as under:- "The petitioner herein withdrew from the previous suit not because he wanted to remove any formal defect but because the dispute was settled through a private compromise. Thus it is not correct to say that suit was withdrawn under sub-rule (2) of Rule 1 of Order XXIII, C.P.C. So as to apply the principle laid down by the Supreme Court, in the ruling reported in PLD 1990 SC 596. In fact the case reported in PLD 1983 Peshawar 100 is applicable to the facts of the present case, wherein it is held that the suit withdrawn' on admission or representation of the plaintiff amounts to estoppel and is binding on him.
8. Learned counsel for the petitioner also relied on the case Karim Gul and another v. Shahzad Gul and others PLD 1968 Peshawar '134 which is again of no assistance to him. The dictum laid down is as under:- "After considering the cases referred to at the Bar by the learned counsel for both sides, as well as the language and the scheme of the various sub-rules of rule 1 of Order XXIII, I am clearly of the opinion that the situations envisaged by sub-rules (I) and (2) are distinct from each other; and if an application is made under sub-rule (2) for permission to withdraw from a suit and to institute a fresh one in respect of the same subject-matter the Court must treat this application as an indivisible one and it must either reject or accept both the prayers contained in such an application. It is not open to the Court to allow the withdrawal of the suit but refuse permission to institute a fresh suit in respect of the same subject-matter or part of the claim. That result can easily be achieved by the plaintiff by unilateral action under sub-rule (1) and he need not make any application to the Court under sub-rule (2). The application is made precisely for the purpose of getting an exemption, from the operation of sub-rule (3)."
' It is not the petitioner's case that he made an application under sub-rule (2). Had it been so then he could say that the Court should have treated his application as an indivisible one, and while granting permission to withdraw the suit the Court could not refuse permission to institute a fresh suit. In fact the petitioner withdrew from the suit because matter was settled through private compromise. The fresh suit was, therefore, not maintainable. In the case of Pakistan Industrial Corporation v. Pakistan through Secretary, Ministry of Finance, Islamabad PLD 1984 Karachi 1.
Scope of applicability of principle of res judicata under sub-rule (3) of Rule of Order XXIII, C.P.C. To the constitutional petition was considered. The principle adopted was the same as in the case of Haji Abdur Rashid Sowdagar Supra. I am, therefore, of the view that this authority is not applicable to the facts of the present case. The conclusion I have been able to arrive at is that the petitioner withdrew from the earlier suit on the basis of compromise and the lower Courts have rightly rejected his plaint under Order VII, Rule 11, C. P. C. In the subsequent suit filed by him. The Courts below in passing the impugned orders have, therefore, committed no illegality or material irregularity calling for interference by this Court under section 115 of the Code of Civil Procedure.
Accordingly this revision petition is dismissed. Parties are left to bear their own costs.
10. Similar view was held by the Lahore High Court in case titled Muhammad Yousaf and 3 others v.
Mst. Zubeda Begum and others (1993 M LD 2138).
11. As the suit filed by respondent was hit by principle of estoppel due to withdrawal of earlier suit by his father, therefore, the same should not be allowed to remain sub judice in the Court of lam, for false hopes. The Courts are duty bound to lay at rest an incompetent suit at an initial stage and for that purpose the provisions contained in Order VII, rule 11 of C.P.C., can be invoked by the trial Court even suo motu.
12. A perusal of paragraphs 1 to 14 of the plaint reveals that proceedings of previous Suit bearing No,528 of 1988 including withdrawal and statement of respondent's father for receiving sale amount etcetera have not been challenged which again make the suit as incompetent. As per my estimation pendency of such-like suit shall be futile exercise and wastage of time.
13. The nub of the above discussion is that impugned judgment passed by the learned Additional District Judge, Muzaffarabad dated 12-8-2009 is hereby set aside, order and decree passed by the trial Court dated 11-7-2009 are hereby restored. The trial Court is directed to decide Suits bearing No,36 of 2008 and 44 of 2008 within five months. with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.