1. FAHIM AHMED SIDDIQUI, J-.--- Through instant Revision Application, applicant has challenged the concurrent findings recorded by the trial court as well as appellate court whereby application under Order VII, Rule 11, C.P.C. was allowed, in result of, the plaint was rejected.
2. The facts, giving rise to instant petition, in nut-shell are that the applicant/plaintiff earlier had filed suit No.137 of 1981; and during pendency of the suit both the parties appointed Nekmard for faisla therefore the applicant/plaintiff withdrew earlier suit. It is further claim of the applicant/plaintiff that faisla was held but the respondents/ defendants didn't agree therefore, they filed fresh suit for following relief(s):- A. Declare that the faisla dated 12-03-2004 held between the parties finally they amicably settled their dispute through faisla dated 12-03-2004 held by the ameens ofboth parties.
2. B. To declare that the compromise-deed in shape of faisla dated 13.03.2004 plaintiff No. 1, the same is legal valid and binding upon the parties.
3. C.To declare that the plaintiffs are owners of suit land viz portion of S No.217 of deh Patar Taluka Badin which is lying on eastern side of Mirwah Canal by virtue of compromise held between the parties by the Nekmards on 12.03.2004.
4. D.To issue Mandatory injunction against the defendants Nos.2 and 3 directing them to maintain the entry in favour of plaintiffs and private defendants regarding survey No. 217 of ... patar as per their compromise deed dated 12.03.2004.
5. E.To issue permanent injunction against the defendants restraining them from selling, leasing, mortgaging and further be restrained from dispossessing the plaintiffs from the suit land directly or indirectly.
6. F.Any other relief which this honourable court deems fit and proper be awarded to the plaintiffs.
7. G.The costs of the suit be borne by the defendant No.3.
8. 3.The respondents/defendants, on appearance, filed an application under Order VII, Rule 11, C.P.C. seeking rejection of the plaint of the applicants/plaintiffs, inter alia on ground that instant suit is barred which application was allowed. The appeal preferred by applicant / plaintiff before appellate court was also dismissed hence through instant petition the concurrent findings of two courts below have been assailed.
9. 4.Learned counsel for the applicant inter alia contends that concurrent findings was result of misreading and non-reading of evidence as well learned trial court has not examined the fresh cause of action in view of agreement/faisla between the parties hence this plaint was not barred under Order II, R.2, C.P.C. He further contends that earlier Suit No.137 of 1981 was filed that was decreed subsequently appeal was dismissed, however, in High Court matter was remanded back.
10. In 2004 he filed application under Order XXIII, Rule 1, C.P.C. whereby he sought simple withdrawal of statement on the ground that issue has been settled. In earlier Suit plaintiff sought declaration on the plea that they are owners of agricultural land in Survey No.217 having share of 8 paisa each respectively. Whereas in 2nd plaint they claimed that there is decision between the parties hence they have fresh cause of action of this suit.
11. 5.On the other hand, learned counsel for the respondent has argued that petition is not maintainable there is concurrent findings of two courts below; petitioner has failed to pin-point any illegality in conclusion arrived by the court below therefore, petition merits dismissal.
12. 6.Heard the respective sides and have examined the available record carefully.
13. 7.The moot question, involved, is application of Order XXIII, rule 1(3), C.P.C. and consequence whereof. Therefore, it would be proper to first refer the same directly for ease and appreciation which reads as:- "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."
14. 8.The plain reading of the above provision prima facie makes it quite clear and obvious that since it is always prerogative of the plaintiff to insist; waive or surrender his claim (s) or part thereof even at time of filing of suit, as is evident from the Order II, rule 2, C.P.C. hence the law keeps such prerogative of the plaintiff alive even during pendency of the lis which the plaintiff can competently exercise within meaning of Order XXIII, rule 1(3), C.P.C. which seems to be in line with Order II, rule 2, C.P.C. Worth to add here that since the consequence of abandoning a claim or part thereof while filing the suit results in bringing an end to such abandoned claim in any subsequent suit hence the same principle has been reiterated in Order XXII, rule 1(3), C.P.C. Once the plaintiff chooses to exercise his prerogative within meaning of Order XXIII, rule 1(3) of the Code for suit (whole claim) or part thereof without permission of the Court to file fresh suit, it would always mean that the plaintiff has deliberated to waive such claim(s) and in consequence whereof he shall stand precluded from bringing a fresh suit against same defendants in respect of the same subject-matter. The difference between Order XXII, rules 1(2) and 1(3), C.P.C. was appreciated by Apex Court in the case of Muhammad Yar v. Muhammad Amin 2013 SCM R 464 and it was concluded as:-- 4........................................................................................
15. 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 plaintiff to 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 as in the cases pertaining to the partition of the immovable property etc.). And where the plaintiff 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). However, sub-rule (2)(a)(b) is/are a kind of an exception to the sub- rules (1) and (3)....
9. It needs not be mentioned that the legislature has deliberated in choosing the 'subject-matter' in place of 'cause of action' while forming the sub-rule (3) of rule 1 of Order XXIII of the C.P.C. which seems to be for no other object but to make it clear that mere jugglery of words thereby bringing the same claim in respect of same subject-matter against same defendants in different manner would not be sufficient to avoid the consequences of a deliberate waiver i.e. unconditional withdrawal of suit or part thereof. In the case of Mst. Mehrunnisa v. Karachi Cantonment Board 1990 CLC 1334. it was held as: "7. ... In order to ascertain if the filing of the second suit is barred by Order XXIII, rule 1(3), Civil Procedure Code, one has to carefully examine the substance of the two suits and not the form and language used in the plaint. The permission to file a suit is granted in respect of a "subject-matter" as distinct from cause of action. "Cause of action" includes all facts that may be relevant to a subject-matter to entitle a plaintiff to get the relief claimed by him in the plaint. The facts that constituted the cause of action in respect of a subject-matter may be wider than the subject- matter itself. The legislature in rule 1 sub-rule (3) of Order XXIII, Civil Procedure Code has intentionally used the term "subject-matter" instead of cause of action. On examination of the two plaints filed in this particular case it transpires that both the plaints related to the same subject- matter i.e. refusal of the Karachi Cantonment Board to recognise the applicant to be in unauthorized possession of the plot in dispute so as to entitle her to the grant of lease in respect thereof. The case of Alberd Judah v. Ramapata Gupta (AIR 1959/Calcutta 715) relied on by Mr. Mirza Muhammad Kazim, Advocate for the appellant also supports such a view. The 9ther case cited by the learned Advocate for the applicant is not relevant to the facts of the present case. Since Mst.
16. Meharunnisa had withdrawn the earlier suit filed by her without seeking any permission to file a fresh suit, the second suit filed by her on the same subject-matter is barred by sub-rule (3) of rule 1 of Order XXIII, Civil Procedure Code."
17. The above discussion makes us to safely conclude that once it is prima facie evident that earlier withdrawal of suit or part thereof was within meaning of Order XXIII, rule 1(3), C.P.C. (without permission to file fresh suit) then plaintiff shall have to face the consequence of his deliberate act i.e. to precluded from "repeating" his claim in respect of same subject-matter against same defendant and no plea of fresh cause of action would help in maintaining such 'repetition'. The word 'repeating' has to be given its due weight because withdrawal would not preclude the plaintiff from entering into a fresh transaction with defendant in respect of same subject-matter even which shall be dealt with according to remedies, provided by the law itself.
18. Now, I would revert to merits of the case, the petitioner/plaintiff though had claimed to have come with reference to fresh transaction i.e. faisla (compromise) as shall stand evident from referral of application under Order XXII, rule-1, C.P.C. through which the petitioner withdrew earlier suit (claims) which was: "That this Honourable Court may be pleased to declare that the S.No.217 (8-13) acres situated in Deh Patar, Taluka Badin is the exclusive property of plaintiffs Nos.1 and 3 and of plaintiff No.2 (who) inherited the share of his deceased father) as per following shares viz ..."
19. The application was worded as: "It is prayed on behalf of the plaintiffs that this Honourable Court may be pleased to allow the plaintiffs to withdraw the suit, as the parties have patched up out side the court, photo stat copy of compromised (compromise) is submitted herewith".
20. Thus, it is quite evident that petitioner deliberate abandoned said claim(s), so set in earlier suit, and confined his claim (s) so agreed in the compromise/faisla. Therefore, the petitioner / plaintiff was 'never competent to bring fresh suit in respect of such subject-matter or claim but prayer clause
(c) of present suit reads as: "To declare that the plaintiffs' are owners of suit land viz portion of S.No.217 of deh Patar Taluka Badin which is lying on eastern side of Mirwah Canal by virtue of compromise held between the parties by the Nekmards on 12.03.2004."
21. Thus, the findings of both the courts below in respect of application of Order XXII, rule 1(3), C.P.C. are proper.
22. 10.Be as it may, the perusal of the available record also shows that suit of the petitioner was also incompetent on other count (s) too. There can be no cavil to fact that faisla/compromise, if any, was in between the petitioner and respondent Ameer Ali therefore, remedy, if any, was against the respondent Ameer Ali and not against any body else which too for enforcement of such compromise/faisla. It needs not be mentioned that status of a compromise/faisla is nothing more than that of 'agreement' hence with reference to such compromise/faisla, the plaintiff cannot seek a relief which is likely to prejudice the interest of a third person.
23. 11.Further, it is prima facie evident that through instant suit the plaintiff has sought declaration and mandatory injunction but no 'cancellation' of title of private respondents nor has sought any relief of specific performance of agreement (faisla) or breach of terms. We would also add that mere declaration in respect of a faisla/compromise without seeking reliefs, so provided by Chapter-II of Specific Relief Act, would also render such suit bar by Section 42 of the Specific Relief Act which reads as:- "42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
24. 12.Thus, it is quite evident that suit of the petitioner / plaintiff was always incompetent hence both the courts below have rightly rejected the same and no case of interference is made out. The impugned judgment passed by the trial court and appellate court are in accordance with law. No cogent reason is demonstrated by the learned counsel hence Revision Application is dismissed.