The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioners: "It is, therefore, very humbly prayed that while accepting the writ petition with heavy cost, the decision of the Respondent No. 1 (Hon'ble District Judge, Hattian Bala) dated 22.12.2010 may kindly be declared illegal, arbitrary, discriminatory, without lawful authority, mala fide, with out jurisdiction, void and null and may kindly be set aside. Any other relief which this August Court deems fit may kindly be granted in favour of the petitioners."
2. Precise facts forming background of the instant writ petition are that Respondent No. 2 filed a suit for recovery of possession-cum-perpetual injunction pertaining to land bearing Khewat No. 94/86, comprising Survey Nos. 75 min (old), 205, measuring 1 kanal 6 marlas, 197, measuring 2 kanals 17 marlas, 196, measuring 4 kanals 1 marla, 204, measuring 4 kanals 14 marlas (new Survey Nos. ), total measuring 12 kanals 18 marlas situated in village Sari Chailan, Tehsil and District, Hattian Bala, against the petitioners, herein, in the Court of Civil Judge, Hattian Bala, on 25.7.2003. The petitioners herein filed their written statement on 09.08.2004. They also filed a cross suit for declaration- cumperpetual injunction before the same Court against Respondent No. 2 on 20.11.2004. The private respondent filed written statement on 25.02.2005. Both the suits were consolidated by the learned trial Court vide order dated 23.04.2005. The private Respondent No. 2 submitted an application under Order VI Rule,. 17 of Civil Procedure Code, for amendment of plaint, on 09.07.2005.
The petitioners filed objections on the said application, however, amendment was allowed by the trial Court vide order dated 15.09.2005. After framing issues Respondent No. 2 was directed to produce evidence vide order dated 22.10.2007. The said respondent produced four witnesses before the trial Court on 14.03.2008 and 26.04.2008 respectively. However, except the statement of Respondent No. 2, the rest of his evidence was closed vide order dated 26.05.2008. In spite of many opportunities, Respondent No. 2 failed to appear to get record his statement. The said respondent then filed an application for withdrawal of his suit on 19.12.2009, which was opposed by the petitioners through objections dated 19.12.2009. After hearing the learned trial Court turned down the withdrawal application vide order dated 24.03.2010. Against the said order of trial Court Respondent No. 2 filed a revision petition before the learned District Judge, Hattina Bala, which after hearing was accepted vide impugned order dated 22.12.2010. Feeling dissatisfied with the above order the instant constitutional petition has been filed,
3. The writ petition has been resisted by private Respondent No. 2 through written statement, wherein it is stated that writ petition is misconceived, hence, the same is not maintainable. It is averred that application for withdrawal of suit was accepted by the learned District Judge, while exercising powers as visualized under Order XXIII Rule 1 of Civil Procedure Code, therefore, the instant writ petition is bad in law.
4. Syed Mushtaq Hussain Gillani, the learned counsel for petitioners, vehemently argued that no formal defect was shown by the private respondent in suit earlier filed by him, hence, his application was not maintainable under Order XXIII Rule 1 of Civil Procedure Code. The learned counsel pressed into service that detailed reasons were given by the learned trial Court while disallowing withdrawal application of the private respondent, however, the learned District Judge, without appreciating the basic provisions of statutory law and applying his judicious mind, accepted the revision petition that too through a telegraphic order and prayed for acceptance of writ petition. The learned counsel for petitioners in support of his, contention referred to and relied upon the following case law:--
(i) Sardar Sikandar Hayat Khan vs. Government of Mad Jammu & Kashmir, [PLD 1978 AJK 25].
(ii) Sardar Abdul Ghafoor Khan and 3 others vs. Federal Land Commission, Islamabad, [PLJ 1979 Lahore 1].
(iii)Gul Amin and another vs. Haji Muhammad Akram, [PLJ 1981 Peshawar 80].
(iv)Muhammad Sharif Khan vs. Mirza Fazal Hussain and others, (1993 SCR 88].
(v)Abdul Baqi Siddiqui vs. Province of Sindh through Chief Secretary, Sindh Karachi and 2 others, [PLJ 2000 SC 183].
5. The private respondent appeared in person and stated that the case may be decided on the basis of available record.
6. After hearing the learned counsel for petitioners at great length, I have perused the contents of writ petition and examined the\ appended record with utmost care. The provisions with regard to withdrawal of suit are postulated under Order XXIII Rule 1 of Civil Procedure Code, which are reproduced 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 afresh 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.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others."
7. Sub-rule (1) permits the withdrawal of suit. As per sub-rule supra the suit can be withdrawn at any time without prior permission of the Court, however, under sub-rule (2) the plaintiff may on application withdraw from the suit with permission to institute a fresh suit. 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. However, withdrawal with permission to file fresh suit, cannot be claimed as a matter of right. For this purpose satisfaction of the Court regarding formal defect or other sufficient grounds is mandatory. An identical point came under consideration before the Hon'ble Supreme Court of Pakistan in case titled Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue Punjab and others (PLD 2003 SC 979). At page 991 of the report it was held as under: "It was further held in the above, case that the withdrawal would not be allowed if it results in perpetuating a fraud or injustice. The Court may in such circumstances decline the petitioner to withdraw the suit. The Court may also in appropriate cases where it comes to the conclusion that the purpose of withdrawal of proceeding is only to prevent the Court from passing an order undoing a wrong or an injustice done to 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."
An identical view was expressed by the apex Court of Pakistan in case of Sardar Muhammad Kazim Ziauddin Durrani and others V. Sardar Muhammad Asim Fakhuruddin Durrani and others (2001 SCM R 148). At page 154 of the precedent case it was held as follows: "As for as instant case is concerned if it is looked keeping in view the above discussion, it would abundantly be clear that so for the ground mentioned in the application under Order XXIII, Rule 1, sub-Rule (2), C.P.C. that the suit property has been gifted by Respondent No. 1 to their mother Mst.
Hassan Taj (late) etc. is concerned it cannot be treated to be a apparent la, keness in formation/arranging the suit in order to invoke the provisions of clause (a), sub-Rule (2) of Rule 1 of Order XXIII, C.P.C. As this effect is substantial or latent in'its nature and touches the merit of the case, therefore, for such reason permission to withdraw the suit was unwarranted."
The point also came under consideration before, Lahore High Court, in case of Salma Khalil and 3 others V. Rashida Siddique and another (2000 CLC 260). A page 262 of the report it was held as under: "I have considered the submissions made by the learned counsel for the parties. I have noticed that while granting permission to Respondent No. 1 to file a fresh suit the learned first appellate Court did not specify the formal defect and permission was granted to Respondent No. 1 to file a fresh suit for declaration. The contention of the learned counsel for the respondents that in the first suit a formal declaration as to the easement rights was not claimed which according to him amounted to a formal defect has no merit either. It is the substance rather than the form which should be looked into to determine the nature of relief claimed by a plaintiff in a suit.. In Para 4 of the plaint the respondents had clearly pleaded easement rights on account of prescription.
Further, the suit was filed in 1992 and was decided on 08.12.1996 after parties had led the entire evidence and the merits of the claims of the parties were duly considered and adjudicated. The respondents could not, therefore, be permitted to take another chance in the form of a declaratory suit."
Similarly in case titled 'Chairman Municipal Committee Muzaffarabad and others V. Habibullah'
(PLJ 1978 Azad Jammu & Kashmir-25), it was observed that undoubtedly Court as vast power to permit withdrawal of or abandon a part of it against all or any of the defendants in order to bring fresh suit to avoid formal defects (ultimately affect the result of suit) or an account of some other sufficient grounds but such power is to he exercised not for pleasure and sweet will of plaintiff but keeping in view the interests of parties in order to do complete justice.
Likewise in case titled Gul Amin and another V. Haji Muhammad Akram (PLJ 1981 Pesh-80), it was held that non joinder of parties, wrongly drafting of plaint or omission to include documents, are not treated formal defects. It was further held that defect must not be one which affects the merits of case but arising out of some error made in good faith by plaintiff.
A similar view was expressed by Peshawar High Court, in case titled 'Shah Jehan vs. Nawabzada Khalid Khan etc, (PLJ 1998 Pesh-155), wherein it was observed that where initially suit was preferred for specific performance of agreement-to-sell and request for withdrawal was to institute a fresh suit on the basis of allotment, thus petitioner/plaintiff was not entitled to withdraw with liberty to institute fresh suit."
8. A reading of the above mentioned statutory law and precedents makes it abadently clear that a suit can be withdrawn on the ground of any formal defect or other sufficient grounds. No formal defect was pointed out by the learned District Judge, in the suit tied by the private respondent.
Before allowing withdrawal application, satisfaction of the Court regarding formal defect or other sufficient grounds was necessary. The private respondent filed the suit along with plethora of documents and also produced all the witnesses in support of his claim. The necessary grounds and lengthy documents were also placed on record by seeking amendment in the plaint, therefore, withdrawal application with permission to file fresh one was unwarranted, hence, the same was rightly turned down by the learned trial Court.
9. For the reasons enlisted above, the impugned order passed by the learned District Judge, Hattian Bala, dated 22.12.2010 is quashed as having been passed without lawful authority, hence, having no legal effect. Consequently the order passed by the learned Senior Civil Judge, Hattian Bala, dated 24.03.2010 is restored and application for withdrawal of suit filed by the private respondent is turned down. The learned trial Court seized with the matter is directed to decide both the consolidated suits within three months from the receipt of the instant order. The costs shall follow the eventualities.