MUHAMMAD ALI MAZHAR, J.---The aforesaid High Court Appeals have been brought to challenge the impugned Order dated 10-4-2014 passed by the learned Single Judge of this Court in Suit Nos.124, 125, 126 and 127/2014 whereby the applications filed by the respondents/plaintif fs for the withdrawal of aforesaid suits were dismissed.
2. The brief facts of the case are that respondents in the appeals (Mohammad Afsar , Muhammad Naeem Shaikh, Azmina Tajuddin Dbakam and Muhammad Afzal) had filed four individual suits in this court for seeking directions, declaration and permanent injunction against the appellant with the prayer that appellant/defendant be directed not to demolish the parking area, stop the illegal construction and restore the same on its previous condition. During the pendency of the suit, interim orders were also operating.
3. On 12-3-2014, all the plaintif fs in their respective suits had filed the applications for the withdrawal of their suits unconditionally . The learned single judge on 12-3-2014 ordered that C.M.A. Number(s) be assigned to the withdrawal applications. It was further observed in the order that the nature of the subject matter of the suit plot appears to be of public interest, hence assistance of learned counsel appearing for defendant D.H.A was also sought and the appellant was restrained from allotting such land in any circumstance until and unless approval of plan sought in the year 1973-75 is produ ced or order is obtained from the court. However , vide order dated 10-4- 2014, the applications filed in the suits were dismissed.
4. The learned counsel for the appellant and the respondents both agreed that these High Court Appeals may be heard and decided at Katcha Peshi stage. The learned counsel for the appellant argued that under Order XXIII Rule 1, C.P.C. It is the absolute right of the plaintif f to withdraw the suit unconditionally , however for filing fresh suit, permission of the court is required which is not the case here. If the plaintif f does not want to proceed the suit, the contents of the plaint cannot be proved without evidence. In the present situation nobody was present before the court for transposition as plaintif f to continue the suit. He further argued that this court at original side exercises the jurisdiction of civil court/district court and the suit can only be decided after leading the evidence by the parties, so there is no question relating to the public interest, which cannot be taken into consideration in the civil suits without transposition of parties which lacks in this case. In support of his contention, the learned counsel relied upon PLD 2010 SC 913 (Mrs. Afroz Shah and others v. Sabir Qureshi and others). In this case the detail discussion has been made on the point in issue. In paragraph No,39 of the judgment, the honorable Supreme Court dilated upon the provisions of Order XXIII Rule 1, C.P.C. And held that plaintif f has undisputable, indefeasible and absolute right to file and to withdraw his suit at any time. It is privileged domain of the plaintif f to decide, to bring the suit and continue it; to withdraw the suit unconditionally or conditionally; when to withdraw the suit; whether to withdraw part of the claim or whole of the claim in the suit; and against which of the defendants to withdraw the suit in case of plurality of the defendants. It was further held .That the plaintif f thus enjoys the choice of the time and stage of withdrawal as well. Though in this suit the withdrawal of the suit was set aside on the ground that in the original plaint there were some other legal heirs also party so after withdrawing the suit of the said plaintif f, the other set of legal heirs was transposed as plaintif f in this case but so far the domain and indisputable right of the plaintif f to withdraw the suit that has already been upheld in the judgment. The learned counsel further argued that after making application, no leave from the court was necessary and the plaintif f has unfettered right to withdraw the suit. No suo motu powers could be exercised by the learned single judge to reject the application. So far as other merits of the case are concerned, the learned counsel argued that appellant never exceeded its authority . The affected area has been demarcated as plots of D.H.A. The construction of boundary wall was designed to prevent unauthorized use as parking by the residents of the area. It was further contende d that D.H.A has its own Master Plan so it is not bound to follow the Master Plan of other local bodies for the land owned/leased out to DHA.
Affidavits separately filed by the respondent in each appeal. In the counter affidavit, each respondent clearly stated that the plot was used for parking purpose for some time which gave him reasons to believe that the plot is a parking plot but since he came to know that this is a private property , he instructed his counsel to withdraw the suit unconditionally . The respondent fully supported that the withdrawal of application was filed in the suit but it was dismissed and learned counsel argued that the reasons for withdrawal of suit are also mentioned in the Counter Affidavit and he has no objection if this High Court Appeal is allowed and the suit is dismissed as withdrawn.
6. There is no cavil to the well settled propositions of law that the plaintif f has absolute right to withdraw the Suit at any stage of proceedings, however if he wants to file fresh suit, only then the A permission of court is required. In the case in hand, crucial question is that if the permission is not allowed, whether the court will prosecute the case in the absence of plaintif f or in place of plaintif f who will be transposed as plaintif f to proceed further and who will adduce the evidence. The court cannot proceed suit suo motu in absence of plaintif f. It is clear under Order IX Rue 8, C.P.C. That where the defendant appears and plaintif f does not appear when the suit is called for hearing the court shall make an order that the suit is dismissed. It is also well settled that even the date fixed for framing or settlement of issues is also a date of hearing and the suit can be dismissed for non-prosecution even at that stage.
Even in the present situation when the plaintif f wants to withdraw the suit, Order XVII Rule 3, C.P.C. Also does not apply . There is no provision in C.P.C. Which requires the court to refuse permission to withdraw a suit or to compel a plaintif f to proceed with his suit. This is because withdrawal of the suit under sub-rule (1) of Order XXIII, C.P.C. Is complete as soon as it takes place and in any case when the court is informed. Where the withdrawal of the suit is C unconditional such prayer cannot be rejected and in absence of any adjudication of rights there is no question of passing a speaking order . It is also pertinent to observe that while examining the appropriateness of exercise of absolute right and unconditional power of the plaintif f to withdraw a suit, court cannot limit the exercise of such rights to circumvent, abridge, scuttle or destroy the right that the law grants to a plaintif f. The court therefore, in all such cases recognizing plaintif f's absolute right where none was injured. The objec t was to regulate the exercise of such absolute right for the balance administration of justice when to destroy the right.
7. The principle underlying PA of O.XXIII of the Code is that when a plaintif f once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit. In respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur . The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit. Reference can made to AIR 1987 SC 1988. (Sarguja Transport Service v . State Transport Appellate Tribunal and others).
8. The honourable Supreme Court in the judgment reported in PLD 2010 SC 913 also quoted their earlier dictum reported in 1992 SCMR 485 in which it was held that Order XXIII Rule 1 confers a right in the plaintif f to withdraw the suit at any time after the institution against all or any of the defendant. He can withdraw or abandon the entire or part of the claim: However , the 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 which shall be adversely affected. In such circumstances, the right to withdraw the suit cannot be exercised without the consent of third party . In the case of Hulas Rai Baijnath v. K.Bass and Co. Limited reported in AIR 1963 Allahabad 368, it was held that in absence of preliminary decree or award or compromise, obviously it is open to the plaintif f to withdraw the suit. In the same judgment, apex court also quoted 1996 SCMR 1433 and PLD 1988 Karachi 560 in which it was held that where the nature of suit/proceedings is such that both plaintif f 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 plaintif f cannot claim absolute right to withdraw the suit unconditionally , if the defendants opposed the prayer or where the defendant after filing of the suit acquires a right in respect of the subject matter of the suit, the plaintif f could not be allowed to withdraw the suit where the. Right acquired by defendant is likely to be defeated by withdrawal of the suit or where the purpose of withdrawal of proceedings is only to prevent the court from passing an order undoing a wrong or an injustice done 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 or where all the parties are treated as plaintif fs, and defendants for the purpose of grant of relief or in a case where the grant of the same, would perpetuate injustice or fraud. In the judgment reported in 2013 CLC 1691 , (Karachi Cooperative Housing Society Union v. Province of Sindh others), authored by one of us Muhammad Ali Mazhar , J, the concept of transposition of parties has been discussed and held that in appropriate cases, transposition of the parties may be made but for that reason each case and its facts have to be examined separately with aims and objectives as to what purpose will be served in case of transposition of parties.
9. It is well settled exposition of law that an appeal is continuation of the suit and the appellate court is also competent to grant permission for the withdrawal of the suit in view of section 107 subsection (2), C.P.C. The appellate court has in general all the other powers and duties of the trial court. The appeal is considered to be an extension of the suit because under section 107 of the C.P.C. The appellate court has the same powers as are conferred by the C.P.C. On the courts of original jurisdiction in respect of the suit instituted therein hence while exercising the Appellate jurisdiction, this court is profusely competent to grant leave to the plaintif fs to withdraw their suits under Order XXIII, Rule 1, C.P .C.
10. As a result of above discussion, these High Court Appeals are admitted to regular hearing and disposed of in the following terms:--
(i) The impugned orders passed by the learned single judge of this court on 10-4- 2014 in Suit Nos.124, 125, 126 and 127/2014 are set aside.
(ii). Applications moved by the respondents/plaintif fs for the withdrawal of Suit Nos.124, 125, 126 and 127/2014 are allowed and the Suit Nos.124, 125, 126 and 127/2014 are dismissed as withdrawn with no order as to costs.
(iii) All pending applications in the above suits and these High, Court Appeals are also disposed of in the above terms. 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.