1. CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal by leave of the Court is addressed against the judgment of the High Court dated 2.9.2009 whereby the revision petition filed by respondents Nos.1, 6 and 8 against the interlocutory order of Civil Judge, Mirpur dated 17.4.2009 has been accepted.
2. The order of Civil Judge, Mirpur dated 17.4.2009 has been set-aside and it is declared that subsequent suit titled Shabina Kausar v. Nargus Khatoon and others was incompetent and not maintainable.
2. Brief history of appeal as narrated is that a suit titled Shabina Kausar v. Shehzad lqbal and others, relating to the land measuring 5 marlas, comprising Survey No.113, situated at village Sonkia, along with building of four rooms, was filed by ihe appellant herein on 2.6.2008 in the Court of Civil Judge, Mirpur seeking declaration including the prayer of perpetual injunction and specific performance. During pendency of the suit, a fresh suit titled Shabina Kausar v. Nargus Khatoon and others, was also filed on 25.9.2008 by the plaintiff-appellant. Later on, the appellant moved an application before the trial Court for withdrawal of the earlier suit. Ultimately, the learned Civil Judge, after recording the statement of the learned counsel, returned the earlier suit titled Shabina Kausar v. Shehzad lqbal and others, vide order dated 26.9.2008. The defendants-respondents raised a preliminary objection regarding maintainability of the subsequent suit filed by the plaintiff-appellant. After framing issues, the learned trial Court vide order dated 17.4.2009, treated the suit as maintainable and directed the parties to produce evidence in support of their respective stand. The defendants-respondents Nos.1, 6 and 8 challenged the order of the trial Court dated 17.4.2009 through a revision petition in the High Court. The learned Judge High Court, vide judgment dated 2.9.2009 accepted the revision petition and set-aside the order of Civil Judge, Mirpur dated 17.4.2009 in the manner indicated in para 1, hereinabove. The appellant, feeling aggrieved, has challenged the legality and correctness of the judgment of the High Court dated 2.9.2009, through the instant appeal.
3. 3.Mr. M. Riaz Tubassam Advocate, the learned counsel for the appellant, after detailed discussion of facts, submitted that the impugned judgment is not maintainable on two counts, firstly; that in the subsequent suit, parties are different and even cause of action and property in dispute is also not the same. Secondly, in the light of latest principle of law laid down by this Court in Muhammad Bashir's case, 2005 CLC 1359, if during pendency of first suit, second suit is filed, the provisions of Order XXIII, rule 1, C.P.C, especially, the bar relating to institution of fresh suit does not attract. The impugned judgment of the High Court is against the principle of law enunciated by this Court, hence, is not maintainable. In support of his version he has placed reliance upon the cases reported as Muhammad Akram and others v. Member, Board of Revenue and another, [2007 SCMR 289], Jeewan Shah v. Muhammad Shah and others, [PLD 2006 SC 202], Naeem Ahmed Khan v.
4. Government of the Punjab through Secretary, Home Department, Civil Secretariat Lahore and 7 others [2006 YLR 1504], Islamic Republic of Pakistan and another v. Mst . Raeesa Begum and another, [2003 SCMR 1701], Faqir Bakhsh and others vs. Jindwadda and others, [2005 YLR 2882] and Ghulam Shabbir v. Commissioner Rawalpindi Division, Rawalpindi and 4 others, [2003 YLR 2640].
5. 4.Conversely, M/s M. Younas Arvi and Muhammad Ayub Sabir, Advocates, the learned counsel for the respondents, strongly opposed the appeal on the ground that deep scrutiny of facts reveals that the subject matter of the subsequent suit and cause of action are the same and mere addition of some parties does not make the subsequent suit maintainable. They submitted that the principle of law enunciated by this Court in the case reported as Karamat Ali Khan and others v.
6. Sardar Ali and 29 others [PLD 2001 SC (AJ&K) 30], is fully attracted in which it has been held that despite filing a fresh suit in presence of first suit subsequently withdrawn, the provisions of Order XXIII, rule 1, C.P.C. are fully applicable on the basis of the theory that what is not directly permitted to be done that cannot be allowed to be done indirectly. They further submitted that through the tricky methods, purpose of statutory provisions cannot be defeated. They placed reliance upon the cases reported as Muhammad Maqbool v. Muhammad Shafi and 9 others, [2012 YLR 1794] and Mir Zaman v. Mst. Begum Jan and 11 others, [PLD 1983 Pesh 100], in support of their version and submitted that the appeal merits dismissal.
7. 5.Due to divergence of opinion of this Court on the subject matter, full Court was constituted for hearing to have an authoritative judgment. The moot point which requires resolution in this appeal is whether the provisions of rule 1, Order XXIII, C.P.C, can be attracted to bar a fresh suit when during pendency of a suit, second suit is filed and thereafter previously filed suit is withdrawn without permission of the Court to file a fresh one. The Division Bench of this Court, while dealing with this legal proposition in the case reported as Karamat Ali Khan and others v. Sardar Ali and 29 others [PLD 2001 SC (AJ&K) 30], has only written the following precise reason:- "The provisions of Order XXIII Sub-rule (3) cannot be defeated by instituting 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."
8. Neither the statutory provisions have been discussed in detail nor any case law has been referred to or relied upon while handing down the referred judgment whereas the Division Bench of this Court in another case reported as Muhammad Bashir Khan v. Muhammad lqbal and others, [2005 CLC 1359] has discussed the statutory provision as well as legal precedents while dealing with the legal proposition. It will be useful to reproduce here the relevant portion of the judgment which speaks as under:-- "9. Before proceeding further we would like to reproduce Order XXIII, sub-rules (1), (2), and (3) of Rule 1 of the Code for proper perception of the case which reads as follows:--
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 a fresh 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." Perusal of Order XXIII, sub-rules (1), (2) and (3) of Rule 1 of the Code makes three sentences particularly prominent. In sub-rule (1), the words "at any time after the institution of a suit" in sub- rules (2), (b) the words "for allowing the plaintiff to institute a fresh suit" and in sub-rule (3) the words "precluded from instituting any fresh suit". When all these sentences are read together, it is unequivocally revealed that only that fresh suit is barred which is filed after withdrawal of the earlier suit; not the one which is filed and was pending at the time of filing the fresh suit. In the case in hand, the first suit filed by the respondent was withdrawn on 8.11.1997 when the second suit stood already instituted on 13.10.1997. Thus, the suit was not instituted after the withdrawal of the earlier suit, so as to attract the provisions of Rule 3 of Order XXIII of the Code. This suit was pending at the time of withdrawal of earlier suit. We are fortified in holding this view by the case reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others [PLD 1983 SC 344], wherein it is held as follows:-- "... A fresh suit envisaged in the rule in one filed subsequent to the withdrawal of the earlier suit. On the question whether the rule barred a suit which at the time of the withdrawal of the earlier suit had already been instituted and pending, we find that in Ram Mal v. Upendra Datt [AIR 1928 Lah, 710] relying on P. Suraj Reddi v. Subba Reddi [1916 39 Mad. 937], it was held that a second suit will not be barred in the case of withdrawal of a previous suit unless conditions of Order XXIII, Rule, 1, C.P.C. are fully satisfied and that if the subsequent suit was already pending at the time of the withdrawal of the previous suit, the provision could not be attracted. A Division Bench of the Lahore Court in Mungi Lal v. Radha Mohan [AIR 1930 Lah. 599] held that: "Order XXIII, Rule 1 refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. It appears to me that the section cannot be read so as to bar a suit which has already been instituted before the, other suit had been abandoned or dismissed."
9. This judgment had been followed in Abdullah v. Bashiran Bibi [PLD 1981 Lah. 336] and it had been held that a fresh suit which had been pending at the time of withdrawal of a previous suit was not barred. The view taken in Mungi Lal's .case had also been followed by this Court in Commissioner of Income Tax v. Ashfaq Ahmed [PLD 1973 SC 406], wherein it had been held that where one writ petition had been filed during the pendency of a previous writ petition, the withdrawal of the previous writ petition before reaching the stage of hearing on merit would not affect the maintainability of the second petition which could legally proceed in spite of the withdrawal of the previous petition. The Sindh High Court has also been of the same view which is reflected in its judgments reported as Ashfaq Ahmed Khan v. Custodian of Evacuee Property [PLD 1966 Kar. 597], and Irshad Ali v. Islamic Republic of Pakistan [1981 CLC 111]. We are, therefore, not inclined to agree that the suit in question was affected by Order II, Rule 2 or Order XXIII,. Rule 1, C . P . C . "
10. This view was also adopted by Lahore High Court in the case reported as Abdullah and 8 others v.
11. Bashiran Bibi and 4 others [PLD 1981 Lah. 336] relying on several other authorities on the point."
12. 6.In the Bashir Khan's case supra, the Division Bench of this Court while dealing with the proposition, after survey of the case law, opted to depart from the view taken by this Court in Karamat All Khan's case. The observation reads as follows:- "13. In view of above stated legal and factual position, the authority of this Court titled Karamat All Khan and another v. Sardar All and 29 others, PLD 2001 SC (AJ&K) 30 discussed above, does not squarely apply in the case in hand, hence, we depart from that As far the other authority relied upon by the learned advocate for appellant reported as Karim Bakhsh v. Jan Muhammad [PLD 1977 Lah. 1033] is concerned, it is equally inapplicable in the case in hand. In this case the suit was withdrawn by the plaintiff with the consent of the defendant but without permission of the Court.
13. The plaintiff was subsequently disallowed and held precluded from instituting the fresh suit in respect of same matter and it was rightly held so."
14. 7.In addition to the case law discussed by this Court in Muhammad Bashir Khan's case, we have also made survey of the case law from Indian as well as Pakistan Jurisdiction. In the case reported as ManRi Lal and another v. Radha Mohan and another [AIR 1930 Lahore 599(2)], the Division Bench of Lahore High Court on this specific legal proposition has categorically observed as under:- "...It is obvious that O.XXIII, R.1 refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. It appears to me that the section cannot be read so as to bar- a suit which has already been instituted before the other suit had been abandoned or dismissed. The learned District Judge has said that no authority has been quoted on this point, but he felt certain that the legislature could not have intended that such an obvious device should be permitted as its effect would be to defeat the provisions of the rule by dispensing with the necessity of obtaining permission of the Court.
15. I am not concerned with the intention of the legislature as the section itself is clear and can only be applied to suits instituted after withdrawal or abandonment of previous suits. This view was taken by a single Judge of this Court in Ram Mal v Upendra Datt 1928 Lah. 710, a case similar to the present. With this view, I am in agreement and I would, therefore, accept the appeal, set-aside the judgment of the District Judge and remand the appeal to him to be decided on the other legal points and on the merits. For example, it will still be open to the appellants before the District Judge to urge that the second suit is barred under S.16, Civil P.C., and any other legal point will be open, apart from the question whether the suit is barred by reason of O.XXIII, R,1, Civil P.C. The court-fee on appeal in this Court will be refunded as the remand is under O.XLI, R.23, Civil P.C. Parties will bear their own other costs in this Court. Costs up to the District Court will be in the discretion of the District Judge."
16. In Mrs. Razia Ahmed's case [PLD 2000 Kar 288], same view had been adopted.
8. The Lahore High Court, in a case reported as Faqir Bakhsh and others v. Jindwada and others, [2005 YLR 2882], after taking into consideration the judgment of this Court in Karamat Ali Khan's case, has observed as following:- "7. At the very outset the question whether the suit filed by the respondent was barred by Order XXIII, rule 1, C.P.C, required to be answered in the light of the evidence as well as the law on the subject. This being a mixed question of law and fact as is evident from issue No.2 which runs as under:-- 'Whether the suit is not proceed--able due to earlier withdrawal of the suit unconditionally? OPD.'
17. This issue may be decided with reference to the evidence produced by the petitioners who in order to discharge onus under this issue have produced copy of earlier plaint titled "Jind Wadda v. Faiz Bakhsh" Exh, D-1 and copy of the order passed in that suit Exh. D-2. A perusal of both these documents indicates that respondents earlier filed a similar suit on 29.10.1997 and the same was unconditionally withdrawn on 27.1.1999 side Exh. D-2, whereas the present suit was filed on 12.12.1998 i.e. during the pendency of the earlier suit. The learned counsel for the petitioner by placing reliance on the case "Karamat Ali Khan and another v Sardar Ali and 29 others," (PLD 2001 Supreme Court (AJ&K) 30) has argued that since the earlier suit was withdrawn unconditionally hence, the present suit was not maintainable even by its institution during pendency of the earlier suit in view of the bar contained in sub-rule (3) to rule (1) of Order XXIII, C.P.C. On the other hand, learned counsel for the respondents has argued that despite the above mentioned judgment of the Hon'ble Supreme Court of AJ&K, the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case "Ghulam Nabi and others v. Seth Muhammad Yaqoob and others" (PLD 1983 Supreme Court 344] holding that where fresh suit has already been instituted and pending at the time of withdrawal of the earlier suit, fresh suit was neither hit nor barred by Order XXIII, rule 1, C.P.C, still holding the field and as such the two Courts below rightly answered the issue No.2 against the petitioners.
18. 8.Though the rule declared by the Hon'ble Supreme Court of AJ&K is in favour of petitioners' case yet in the presence of law declared by the Hon'ble Supreme Court of Pakistan which is binding on all the Courts under Article 189 of the Constitution and that too fully applicable to the facts and circumstances of the present case, it is not possible for this Court to follow the law declared by the Hon'ble Supreme Court of AJ&K. Resultantly, I am constrained to hold that the two Courts below have committed no illegality or irregularity while deciding issue No.2 against the petitioners."
19. 9.The apex Court of India, in a latest judgment reported as Vimlesh Kumari Kulshrestha v.
20. Sambhajirao and another; [AIR 2009 Supreme Court 806], once again reaffirmed the laid down opinion of the Lahore High Court in the following terms:- "8. A somewhat similar question came up for consideration in Mangi Lal v. Radha Mohan [1930 Lahore 599(2)], wherein it was held: 'Order XXII, Rule 1, refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order XXIII, Rule 1, cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suits.'
21. 9.The said view was followed by the Karnatka High Court in P.A Muhammad v. The Canara Bank and another [AIR (1992) Kar. 851.
22. 10.An identical view was also taken in Girdhari Lal Bansal v. The Chairman, Bhakra Beas Management Board, Chandigarh and others [AIR 1985 Punj and Har 219] wherein it was held: '4... The earlier application was filed on 6th Oct., 1982 and the present application was fixed on 26th Oct, 1982 and the first application was withdrawn vide order dt. 18.11.1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dissented from or overruled. The aforesaid two Lahore decisions clearly say that if second suit is filed before the first suit is withdrawn then O.XXIII, C.P.C. is not attracted and the second suit cannot be dismissed under O.XXIII, R.1(4) of the Civil P.C. Accordingly, I reverse the decision of the trial Court and hold that the present petition was not barred under O.XXIII, C.P.C.
23. We agree with said views of the High Court"
10. The collective wisdom of all the 'Courts of sub-continent is supportive to the principle of law laid down in Muhammad Bashir Khan's case [PLY 2005 SC (AJ&K) 89]. Therefore, we have paid our utmost attention and also taken into consideration the relevant statutory provisions of Civil Procedure Code but could not succeed to find out any support in favour of the view adopted in Karamat All Khan's case. The consensus of the legend jurists of the subcontinent is clear that if a suit is already pending and after filing of subsequent suit, the first suit is withdrawn, in such case, the provision of sub-rule (3) of rule 1 of Order XXIII, C.P.C., precluding the plaintiff from instituting fresh suit is not applicable. This view appears to be most logical and just. Even otherwise, to non- suit a party is clear penalty and for imposing such penalty, there must be some clear expressed statutory provision. Thus, in absence of any clear statutory provision, a party cannot be non-suited on presumptive non-speaking wisdom of the legislature by any stretch of imagination or interpretation of statute.
24. 11.So far as the other contentions of learned counsel for the respondents that the appellants have got no cause of action or question. of limitation etc., are concerned, they are at liberty to raise all these defences before the 'trial Court. Mere non-attraction of bar provided in sub-rule (3), rule 1 of Order XXIII, C.P.C, does not mean that all other legal defences of the defendants have been vanished.
12. In view of the consensus of the superior Courts of subcontinent, the principle of law laid down in the case reported as Karamat Ali Khan and others v. Sardar Ali and 29 others [PLD 2001 SC (AJ&K)
25. 30] cannot be enforced, therefore, we are constrained to overrule this judgment and adopt the principle of law enunciated in the case reported as Muhammad Bashir Khan v. Muhammad Iqbal and others 2005 CLC 1359.
26. In the light of above stated reasons, while accepting this appeal, the impugned judgment of the High Court is recalled. Resultantly, tile trial Court's order stands restored. The appeal is accepted with no order as to costs.