' SYED MUHAMMAD FAROOQ SHAH, J.--- Being aggrieved and dissatisfied with the impugned order dated 30-9-2011 passed on application under Order VII, Rule 11, C.P.C. In Summary Suit No,1 of 2011 by IInd Additional District Judge Badin, the present appeal has been preferred by the appellants praying therein to set aside the impugned order and allow the appeal, decree the suit and remand the matter to the Lower Court for decision on merits.
2. Succinctly, necessary facts leading to the captioned appeal are that appellant Muhammad son of Ahmed filed an application under Order XXIII, Rule 1, C.P.C. In Suit No,49 of 2011, wherein a prayer to withdraw the suit with permission to file a summary suit under Order XXXVII, Rules 2 and 3, C.P.C.
Has been made on the ground that proper remedy of filing Summary Suit for the recovery of his amount on the basis of promissory note is available. By order dated 8-4-201i, the application was allowed as prayed for and the F.C. Suit No,49 of 2011 was dismissed as withdrawn with no order to costs. Thereafter, appellant has filed subsequent suit under summary chapter of C.P.C.
3. A perusal of the record transpires that by an order dated 30-9-2011 the plaint of summary Suit No,1 of 2011 was rejected under Order VII Rule 11, C.P.C. By the trial Court on the sole ground that under Order XXIII, C.P.C. Plaintiff can withdraw the suit whenever he desires but cannot file a fresh suit on same subject-matter without getting permission from the concerned court. In this regard reliance is being placed on PLD 2001 SC 325, by the learned trial Court.
4. Impugned order has been assailed in the instant appeal mainly on the ground that the learned trial Court illegally held that appellant cannot file a fresh suit on the same subject-matter, particularly the prayer to file a fresh suit was allowed. The remaining ground urged by the appellant is that permission to withdraw the suit is presumptive of grant of permission to file fresh suit. It is averred that learned lower court committed illegality by not appreciating that the respondent has defaulted in obtaining leave to defend the suit in time, therefore, he could not file application under Order VII, Rule 11, C.P.C., except otherwise leave to defend the suit is granted by the court.
5. On institution of instant appeal under section 96, C.P.C., respondent was duly served with notice, who appeared on 23-1-2012 and made a request for time to engage counsel and thereafter on 6- 8-2012 he did not show his appearance. Heard the learned counsel for the appellant and perused the record.
6. Admittedly, subsequent suit was filed under Order XXXVII, Rules 2 and 3, C.P.C. Wherein defendant/respondent was not entitled to appear and defend the suit as a routine like other civil suits, unless he obtains leave from the court to appear and defend under Order XXXVII, Rule 3, C.P.C.
In the reported decision delivered in the case of Farooque Ahmed v. Raza Muhammad (PLD 2007 Karachi 182) learned Single Judge of this Court held that:--- "In default of his obtaining such leave for his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted and the plaintiffs shall be entitled to decree. The advantage in adopting the procedure prescribed by Order XXXVII, C.P.C. Is that the defendant is not as a matter of right entitled to appear or to defend, but if he' desires to be heard he must apply to the Court for permission to appear and defend within ten days of service of summons as envisaged by Article 159 of the Limitation Act. Till such time as leave to defend is granted the defendants cannot even file interlocutary application in order to agitate the point of jurisdiction nor to question the transactions between the parties or to challenge validity and legal effect of the promissory note and issues can be decided at the trial after recording evidence after leave to defend is granted to the defendants on disclosing a sufficient, cause, as has been held in case of Messrs United Distributors Pakistan Limited v. Ahmed Zarie Services and another (1997 MLD 1835).
7. In the case of S. Nasir Ali v. Feroze Din Rana (1969 SCM R 933) apex Court observed that:--- "non-omission of the court to mention in so many words that permission to bring a fresh suit was given does not, in our opinion render the second suit incompetent."
' The Hon'ble Supreme Court in the case of. Moula Bux v. Muhammad Zahid and others (PLD 1990 SC 596) held that "court cannot at the same time allow to withdraw the suit and refuse permission to institute fresh suit". In the instant case in hand, by filing application under Order XXIII, Rule 1, C.P.C.
The plaintiff has made specific prayer to withdraw the suit and to file a fresh one.
9. From perusal of order passed on application under Order XXIII, Rule 1, C.P.C. In Suit No,49 of 2011, it appears that the learned Senior Civil Judge Matli passed the order that "The prayer in the application is allowed". Contents of application reveals that a specific prayer to file a fresh summary suit has been made by the plaintiff, therefore, the impugned order is based on surmises and conjectures, perhaps the impugned order was passed hurriedly without perusing the application filed in Suit No,49 of 2011 and order passed thereon. Learned trial Court relied on the case of Hashim Khan v. N.B.P. (2011 PLD SC 325), apparently, the facts of this ruling are not applicable in the circumstances of the present case, therefore, distinguished.
10. Mere reading of the mentioned provision as provided under Order XXIII, Rule 1(b), a court is empowered to grant permission to file fresh one for the subject-matter of a suit, when there are sufficient grounds; here in this case plaintiff has shown sufficient reason for withdrawal of suit having technical defects which required withdrawal of earlier suit and filing of the fresh one.
Circumstances revealed that the trial Court below had not applied its judicial mind while rejecting the plaint under Order VII, Rule 11, C.P.C., though the prayer to file a fresh suit had already been granted. Under the law, fresh suit can be I instituted when suit was withdrawn conditionally. Trial Court, without r adverting to, dealing with or deciding the application filed under Order VII, Rule 11, C.P.C., proceeded routinely and mechanically, the Court was supposed to consider that how the application under Order VII, Rule 11, C.P.C. Is entertainable when leave to defend under F Order XXXVII, C.P.C. Filed by the defendants was pending for order, therefore, impugned order of rejection of plaint to file fresh suit being barred under Order XXIII, Rule 1(3), C.P.C. Have been passed without lawful authority and of no legal effect. Suffice to say that the prayer of the application filed under Order XXIII, Rule 1, C.P.C., by the appellant before the trial Court reveals that it was not unconditional withdrawal of suit and, therefore, appellant was not precluded to refile a subsequent suit.
11. Crux of the aforesaid discussion, in light of the cited ruling is that the impugned order dated 30- 9-2011 passed in Suit No,1 of 2011 not tenable in law is therefore set aside, with the result, the application made by the appellant on 8-4-2011 for withdrawal of Suit No,49 of 2011 and refiling a fresh suit under Order XXXVII, Rules 2 and 3, C.P.C. And order that, "the prayer in the application is allowed" is hereby confirmed. Resultantly, the fresh suit filed under Order XXXVII, C.P.C. Shall be proceeded on its merits and Trial Court is directed to proceed according to law and dispose of the same expeditiously, preferably within three months after receipt of this order.