MUHAMMAD AMEER BHA TTI, J.--- Through this constitution petition, the petitioner has called-in-question the order dated 19.01.2016 passed by the learned revisional Revision Court whereby it while accepting the revision petition filed on behalf of respondent No.3 against the order of the learned Civil Judge dated 24.11.2015 granted permission to institute fresh suit by withdrawing the pending one setting-aside to the extent of grant of permission for filing fresh suit.
2. This petition entails the facts that during pendency of suit for specific performance filed by the petitioner , an application for its withdrawal was moved on the basis of some settlement arrived at between the parties with permission to institute fresh if necessity arises. The said application was allowed by the learned trail Court vide order dated 24.11.2015 whereof the revision petition filed by respondent No.3 was accepted through the impugned order of learned Addl. District Judge dated 19.01.2016.
3. At the very outset, learned counsel for the petitioner relying upon Muhammad Younas and others v. Mst.
Zainab Bibi and others 1992 ALD 690(2) (Lahore) contends that the learned Revisional Court has committed material illegality and irregularity while setting-aside the order of the learned trial Court with regard to grant of permission for institution of fresh suit and maintaining the order qua withdrawal of the suit for the reason that The Revisional Court either has to accept the application of the petitioner in toto or it should have been dismissed if any reason for railing of the suit as contemplated by Order XXIII Rule 1(2), C.P.C. was not found valid; hence the order impugned is not sustainable in the eye of law. Adds that if the Court was not inclined to grant him permission on account of insuf ficient ground, his application might be dismissed allowing the proceeding in the suit to be continued.
4. On the other hand, learned counsel for respondent No.3 contends that the learned Addl. District Judge has rightly set aside permission granted by the learned trial Court for institution of suit fresh, as the reason mentioned in the application for withdrawal of suit was compromise arrived at between the parties and if the petitioner had made the prayer for withdrawal of the suit on the basis of compromise arrived at between the parties, then there was no occasion for filing fresh suit and this aspect of the case has been properly appreciated by the learned Revisional Court. Hence the order of learned Revisional Court being in line with the princ iples laid down by the Hon'ble Supreme Court leaves no room to re-examine it, thus committed no illegality or irregularity , hence not amenable to constitution petition.
5. I have heard learned counsel for the parties, examined the record of case with their able assistance and gone through the case law referred by learned Revisional Court as well as cited at Bar by learned counsel for parties.
6. It has been elaborately held by this Court as well as Hon'ble Supreme Court that the application lacking valid reasons to grant permission to institute fresh suit be dismissed and the proceedings in the pending suit shall be allowed to be continued. In this context I am fortified from the ratio decidendi laid down by this Court in Hon'ble Supreme Court in Karim Gul and another v. Shahzad Gul and another (1970 SCMR 141) wherein it was held as under:- "Under sub-ride (2) (b) of rule 1 of Order XXIII of the Code of Civil Procedure the Court has to treat, the application for the withdrawal of the suit and permis sion for bringing a fresh suit on the same cause of action as one and indivisible. It must either reject or accept both the prayers in such an application. It is not open to it to allow the withdrawal of the suit and yet refuse permission to institute a fresh suit in respect of the same subject-matter . To such an order of withdrawal the provisions of sub-rule (3), do not apply , they being restricted to a withdrawal under sub-rule (1) of rule 1 of Order XXHI".
In Moula Bakhsh v. Muhammad Zahid and another (PLD '1990 SC 596), similar view was adopted in the following manner:- "Withdrawal of suit Permission by Court---W ithdrawal is complete the moment the order to that effect is recorded by the Court and the right to bring a fresh suit follows from the withdrawal so permitte d Court cannot at the same time allow to withdraw suit and refuse permission to institute fresh suit".
Likewise, yet in another case reported as, Kulsoom and another v. Trustees of Port of Karachi through Chairman K.P .T, Karachi and 2 others (2002 SCMR 718 ) it was held as under:- O. XXIII, R.1----Constitution of' Pakistan (1973), Art. 185(3)----W ithdrawal of suit with permission to bring fresh suit on the same cause of action---Supreme Court granted leave to appeal in the light of dictum laid down in the case of Karim Gul and another v. Shahzad Gul and another (1970 SCMR I41) to consider the contention of petitioner that his application for withdrawal of suit and permission for bringing fresh suit on the same cause of action, was one and indivisible, and Trial Court could either reject or accept both the prayers, but could not accept the one and reject the other".
In Muhammad Aziz v . Syed Qudrat Ali 1988 CLC 1201 (Karachi) it was laid down that, "Withdrawal of suit Application for---- Court refusing to grant permission to withdraw suit with permission to bring fresh proceedings on same cause 'of action, held, could not treat application to that respect as one for unconditional withdrawal-- --Court after refusing such application would be bound to dispose of appeal, on merits".
In Ahban Uthool Village v. Ahban Zani Village (PLD 2004 Peshawar 198) is also quoted with advantage and the relevant portion thereof is also reproduced hereunder for facility of reference: "plaintiff who sought withdrawal of suit with permission to file fresh suit had failed to indicate as to what were formal defects or what was sufficient cause to grant permission to plaintiffs to withdraw suit and file fresh suit on same cause of action--Material available on record to that effect was to be appreciated and Appellate Court should have satisfied itself before granting application of plaintiff's in that respect:"
Same view was taken by the Hon'ble Supreme Court in Gul Sahib Din and others V. Malik Sultan Jan and others (PLJ 1982 SC 512) by laying down a broad proposition as under:- "Application for withdrawal of suit conta ining no particulars regarding formal defects in suit and merely stating presence of defects detrimental to rights of petitioners, order of High Court remanding case being correct not to he interfered with"
Here, I would also like to refer another case reported as Muhammad Yar (deceased) through L. Rs. and others v. Muhammad Amin (deceased) through L. Rs. and others (2013 SCMR 464) wherein the apex Court while - dealing with the question under debate has held as under:- "O. XXIII, R. 1920--Application for withdra wal of suitor abandonment of part of claim to institute a fresh suit----Court refusing application/permission in such regard---- Effect-- Where Court refined application/permission to withdraw suit or abandon claim or part thereof for purposes of instituting as fresh suit, the suit should not be dismissed simpliciter , rather the request for permissi on alone should be turned down and the suit should continue, leaving the plaintiff with the right to choose his farthe r course of action and to decide whethe r he should withdraw the suit or not."
In the bulk of these precedent case-law , textually set-out above, I have noticed that through the impugned order the learned Revisional Court on the one hand set-aside the order of the learned trial Court to the extent of grant of permission to institute fresh suit on the ground that reason for withdrawal of the suit mentioned in the application was not found plausible, therefore, the fresh suit could not be allowed to be instituted, whereas on the other hand, the order to the extent of withdrawal of the suit was maintained.
Apparently , the order impugned passed by the learned Revisional Court, whereby the order of the learned trial Court with regard to grant of permission was set-aside maintaining the withdrawal order , simpliciter was contrary to the law laid down by Hon'ble Supreme Court as well as this Court referred ibid, therefore, in a case where the Court travelled beyond its jurisdiction provided under Section 115, C.P.C. those orders would be without jurisdiction; nullity in law and void in order to rectify the said wrong done by the learned Revisional Court, there is no prohibition to exercise the constitutional power provided under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
It is settled law that the learned Courts below have the ample power to decide the application either to permit the plaintif f to withdraw the suit with permission to institute fresh on the basis of reasons given in the application or to reject the application straightaway considering the reasons to be insuf ficient as contemplated by Order XXIII Rule
(1) sub Rule 2, C.P.C., so it is held that the Court has to decide the application either way having no choice except to form its opinion with regard to the validity of the application according to its permissible contents, as contemplated in Order XXIII Rule (1) sub Rule (2), C.P.C. unless the petitioner himself made any statement with regard to the withdrawal of suit waiving the right of filing fresh suit then in that case it would be a case covered under Order XXIII Rule 1, C.P.C., where the plaintif f party could withdraw its suit or abandon his rights at any stage.
In case of Order XXIII Rule. I sub Rule 2, C.P.C., no discretion is left with the Court to grant permission to withdraw the suit but refuse to grant permission to file fresh because both the parts of the application are indivisible, therefore, if it allows withdrawal then it cannot refuse permission to bring a fresh suit for the obvious reason that the sole object for which withdrawal is sought is to institute a suit afresh.
To sum-up, with regard to interpretation of Order XXIII, C.P.C., suffice it to say that said Order warns the plaintif f from withdrawing the suit, as thereafter , he will be precluded from preferring afresh. however , if the plaintif f obtained permission to institute fresh suit disclosing any defect in the suit or other sufficient reasons, he by getting permission institute a fresh suit and while deciding the application if the Court reached on the conclusion that the reasons given in the application are not sufficient to grant permission for filing fresh suit, it would be obliged to dismiss the application and proceed with the suit further in accordance with law .
The case in hand has been examined in light of the precedent case-law of the honourable Supreme Court as well as this Court referred supra. The order of the learned Revisional Court, whereby it approved the withdrawal of suit while maintaining the order of the learned trial Court whereas permission to institute fresh suit granted by the learned trial Court was set-aside on account of insuf ficiency therein being contrary to the law laid down by the august Supreme Court as well as this Court, is not sustainable and hereby set-aside. Since I am persuaded regarding declaration qua validity of the reasons given in the application of the learned Revisional Court, therefore, this petition is accepted; the orders of both the learned Courts below are hereby set-aside with the result the application of the petitioner-plaintif f for grant of permission to institute a fresh suit by withdrawing the pending, is hereby rejected. The suit shall be deemed to be pending before the learned trial Court, which shall proceed with it in accordance with, law .
7. The parties are directed to appear before the learned Senior Civil Judge on 12.07.2016 for further adjudication of suit either by himself or entrust it to any other Court of competent jurisdiction.