Through this Civil Revision, the petitioner has challenged the order dated 28.04 .2016 passed by Addl. District Judge, Chichawatni, whereby his application under Order VII Rule 11 read with Section 151 of the C.P.C was dismissed.
2. Brief facts of the case are that the respondent filed a suit for recovery of rupees two crore under Order 37 Rule 1 & 2 of the C.P.C on the basis of cheque dated 06.01.2014 bearing No.BBA-11306274 drawn on Soneri Bank Shah Rukne-e-Alam Branch Multan. The respondent claimed that the petitioner approached him with a proposal that a commercial plot valuing rupees four crore was available and if the petitioner and respondent purchased the same in partnership, they could earn profit out of the transaction. The respondent claims that he paid rupees two crores to the petitioner and when plot was not purchased, the petitioner on respondent' s demand had issued the afore-referred cheque. Subsequently , the cheque was dishonoured on presentation on 05.03.2014. On refusal of the petitioner to pay the amount of cheque, the suit for recovery was filed by the respondent on 16.09.2014. The petitioner filed an application for leave to defend and also application under Section 5 of the Limitation Act, 1908 for condonation of delay . The petitioner on 12.10.2015 filed an application under Order VII Rule 11 of the C.P.C for rejection of the plaint filed by respondent on the ground that earlier on the basis of the same cause of action, the respondent had filed a suit for recovery of rupees two crores which had been withdrawn unconditionally on 18.08.2014. The said application was contested by the respondent on the ground that the previous suit had been withdrawn on the ground that the petitioner had assured the respondent that he would make the payment of rupees two crore to him and, therefore, the subse quent suit was not barred and the court should not dismiss the suit on the basis of technicality . The appellate court on 28.04.2016 allowed leave to defend to the petitioner subject to furnishing of surety bond equal to the suit amount and dismissed the application under Order VII Rule 11 of the C.P.C filed by the petitioner . The petitioner has now challenged the order dated 28.04.2016 to the extent of dismissal of his application for rejection of his plaint.
3. I have noticed that the notices were issued to the respondent on 25.05.2016 for 28.09.2016 and the proceeding before the trial court were suspended. Process Server 's report shows that respondent was served personally through the agency of Civil Judge 1st Class, Chichawatni, but neither he appeared nor any counsel appeared on his behalf in the court and he was proceeded against ex-parte on 07.12.2016.
4. Learned counsel for the petitioner has argued that as the previous suit has been withdrawn without seeking permission to file fresh suit, therefore, the respondent was barred from re-filing of the suit on the basis of the same cause of action.
5. From the perusal of the record it is seen that both the suits have been filed on the basis of cheque bearing No.BBA-1 1306274 dated 06.01.2014 drawn on Soneri Bank Shah Rukn-e-Alam Branch, Multan for an amount of rupees two crore which bounced on 05.03.2014. The earlier suit was withdrawn by the respondent on 18.08.2014, the order dated 18.08.2014 is reproduced below: "The learned counsel for the plaintif f stated that he wants to withdraw instant civil suit on the ground of compromise with the defendant and also requested for refund of the Court Fee. In this regard the signatures of learned counsel for the plaintif f have been obtained on the margin of order sheet. In view of the statement of learned counsel for the plaintif f, this civil suit for recovery of amount is hereby dismissed as having been withdrawn. Record reveals that the suit of the plaintif f was at the stage of summoning the defendant. Moreover , the compromise between the parties was also effected. Therefore, the request of the counsel for the plaintif f is allowed in accordance with law . File be consigned to the record room."
From the perusal of the order it is clear that permission to file a fresh suit had not been asked for or allowed. Even in reply to the application under Order VII Rule 11 of the C.P.C, the respondent has not claimed that he had asked for permission to file fresh suit and which was not allowed. Simply the respondent has stated that he had withdrawn the suit on the basis of assertions of the petitioner that he would make the payment to the respondent and requested to proceed on merit instead of rejecting the plaint.
6. The learned Addl. District Judge while dismissing the application of the petitioner under Order VII Rule 11 of the C.P.C has observed as under:- "Perusal of record reveals that plaintif f previously instituted suit for recovery of Rs.two crore under Order 37 CPC on 12.3.2014 and during the proceedings of said suit the plaintif f get it withdrawn on 18.8.2014 on the ground that compromise with the defendant has been effected. Later on, the plaintif f instituted instant suit on 20.9.2014 while mentioning in the head note that defendant has refused to pay amount and instant suit has been filed. Record further reveals that previous suit was not withdrawn by the plaintif f on the ground that due to some formal defect, there is likelihood of failure of suit. The pre condition mentioned in Order XXIII Rule 1(3) CPC which barred the institution of fresh suit are missing in this case. The cases relied upon by the learned counsel for the petitioner/defendant are distinguishable from the case in hand. Application having no merits is hereby dismissed."
Record reveals that previous suit was not withdrawn by the plaintiff on the ground of formal defect or likelihood of failure of suit. From the order whereby first suit was withdrawn it is clear that suit was withdrawn on the basis of alleged compromise of matter outside the court without making request for permission to file suit again. The terms of the alleged compromise were not placed before the court.
7. The controversy revolves around Order XXIII Rule 1 of the C.P .C, which is reproduced as under:- "ORDER XXIII- WITHDRAWAL AND ADJUSTMENT OF SUITS
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 plaintif f 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 plaintif f 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 plaintif f 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."
Order XXIII Rule 1(3) provides that where the plaintiff as against all or any of the defendants withdraws a suit or abandons of part of claim without 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. The Hon'ble Supreme Court of Pakistan in case titled as MUHAMMAD YAR (DECEASED) through L.Rs and others versus MUHAMMAD AMIN (DECEASED) through L.Rs. and others (2013 SCMR 464) after referring to Order XXIII Rule 1(3) C.P.C has been pleased to observe as under:- "From the clear language of the above, it is vivid and manifest that the noted rule mainly comprises of two parts; sub-rule (1) entitles the plaintif f of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any one of the defendants, at any stage of the proceeding and this is his absolute privilege and prerogative (Note: except in certain cases where a decree has been passed by the Court such as in the cases pertaining to the partition of the immovable property etc.). And where the plaintif f has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant (s) and this bar is absolute and conclusive, which is so visible from the mandate of sub-rule (3)"
8. The same principle has also been reiterated in the judgment reported as AZHAR HAYAT versus KARACHI POR T TRUST through Chairman and others (2016 SCMR 1916 ) in the following terms:- "6. We shall first deal with the legal objections taken by the learned counsel for the respondents. The petitioner had filed C.P.No.D 2602/2014 which was "not pressed" on 19 August 2014 and then filed the suit on 26 August 2014 (which was converted into a petition wherein the earlier petition filed by the petitioner was mentioned in paragraph 13 by stating that, "the same has been withdrawn by the Plaintiff as fresh cause of action has accrued to the Plaintiff." The respondents had objected to the subsequent filing of the suit-petition as the requisite permission had not been obtained from the court when it was not pressed and dismissed. The impugned order took notice of this fact, but the learned judges did not non-suit the petitioner on this ground evident through he could have been because sub-rule (3) of Rule 1 of Order XXIII of the Code stipulates that where the plaintiff withdraws from a suit without being given permission to institute a fresh suit in respect of the same subject-matter or such part of claim he would be precluded from doing so."
9. The question of withdrawal of suit on the basis of oral compromise came into consideration before the Hon'ble Supreme Court of Pakistan in case titled as GHULAM ABBAS and others versus MOHAMMAD SHAFI through LRs and others (2016 SCMR 1403 ), wherein the Hon'ble Court has held that withdrawal of suit on the basis of oral compromise either constitutes satisfaction of claim or abandonment of his grievance or cause of action.
10. By following dictum laid down by the Hon'ble Supreme Court of Pakistan in the afore-referred judgments, I am of the view that having withdrawn the earlier suit un-conditionally on the basis of some compromise that had been affected outside the court and was not made part of the record, the respondent is now precluded from re- agitating the same cause of action in this court on the basis of same cheque. The subsequent suit filed by him is barred under Order XXIII Rule 1(3) of the C.P.C.
11. The findings of the Addl. District Judg e that the suit was not withdrawn by the plaintif f on the ground of some formal defect or likelihood of failure of the suit, therefore, subsequent suit is not barred is not in accordance with law and principle laid down by Order XXIII Rule 1(3) and, therefore, the order dated 28.04.2016 not being in accordance with order XXIII Rule 1(3) of the C.P .C is set-aside.
12. The maintainability of the application under Order VII Rule 11 of the C.P.C for rejection of plaint under Order XXIII Rule 1 (3) C.P.C has been conside red in the case law titled as Messrs SINDH ENGINEERING (PVT .) LTD versus OTIS ELEV ATOR COMP ANY and others (2004 YLR 59) before the Division Bench of the Karachi High Court, wherein the Hon'ble High Court on the basis of withdrawal of earlier suit reached the conclusion that the suit was not maintainable as being barred by Order XXIII Rule 1 of the C.P.C and the plaint was liable to be rejectedth th under Order VII Rule 11 of the C.P.C. The same principle was also considered in the judgment titled as SHAH WALAYAT and 3 others versus MUHAMMAD AKRAM and another (2003 MLD 961) and ROZI KHAN GOJAR and another versus Mst. REHMAT BIBI (2004 CLC 466). In all the afore-referred judgments suits were barred by law under Order XXIII Rule 1 (3) of the C.P.C and the plaints were rejected under Order VII Rule 11 of the C.P.C. It is in the interest of justice that still-born suit should be laid to rest at the earliest. Reliance is placed on GHULAM ABBAS and others versus MOHAMMAD SHAFI through LRs and others (2016 SCMR 1403) wherein the Hon'ble Supreme Court of Pakistan in a similar situation held that where earlier suit had unconditionally been withdrawn the subsequent suit on the basis of the same cause of action is barred by law and upheld the decision of the High Court to nip the appellant's still-born claim in the bud. Relying upon the afore-mentioned judgments, I have also reached the same conclusion that suit filed by the petitioner could not be allowed to proceed further and application under Order VII Rule 11 of the C.P.C is liable to be allowed.
13. Resultantly , the order dated 28.04.2016 passed by Addl. District Judge, Chichawatni is set-aside and application under Order VII Rule 11 of the C.P.C filed by the petitioner is allowed with the result that the subsequent plaint filed by the respondent is rejected under Order VII Rule 1 1 of the C.P .C.
14. For what has been discussed above, this civil revision is allowed .