ROZI KHAN BARRECH, J.----This Civil Revision Petition in terms of section 115 of The Code of Civil Procedur e (V 1908) (hereinafter referred as ("C.P.C.") arises out of order dated 30.04.2019 (hereinafter "the impugned Order" ) passed by learned Member Majlis-e-Shoora, Mastung, (hereinafter "the Appellate Court" ) 'wherein the application under Order XXIII, Rules 1 and 2, C.P.C. filed by the respondent No.1/plaintif f was allowed in the appeal with direction to withdraw the suit to file afresh one.
2. Epitomized facts necessary for adjudication of the instant petition are that the respondent No.1/plaintif f filed a suit for declaration and permanent injunction and cancellation of an agreement dated 4-4-2015 against the petitioner/respondents Nos.1 to 6 before the Court of Qazi Dasht Mastung with the averments that the respondent No.1 obtained a piece of land on a lease from respondent No.2 for a period of 50 years on 09.01.2015 vide an agreement while the respondent No.1 also obtained a piece of land on a lease from the respondent No.3 for a period of 50 years on 04.04.2015. The respondent No.1 entered into an agreement with the petitioner that the respondent No.1 and petitioner will cultiva te the above said land jointly obtained by the respondent No.1 on a lease and as per agreement it was agreed that after deduction share of the respondents Nos.1 to 3 (fifth share) excluded buzgari and other expenses whatever will leave, the same will be distributed between the petitioner and respondent No.1 . It is further averred in the plaint that after expending huge amount, the petitioner and respondent No.1 made the above said lands cultivable, whereupon they grew apple trees, installed two tube-wells and in the year 2017 both the petitioner and respondent No.1 jointly grew barley and wheat crops, but the petitioner usurped all the income and bypassed the respondents Nos.1 to 3 from the same and then made all the properties/lands in his control/possession. Hence this petition.
3. The respondent No.1 resisted the suit; being a defendant while submitting his written statement, he controverted the assertion contained in the plaint. From the divergent pleadings of the contested parties following multiple issues were framed:
1. Whether the suit of plaintiff is hit by doctrine of section 7, Rule 1 1, C.P .C.?
2. Whether the suit of plaintiff is maintainable without mentioning survey no of suit property?
3. Whether cause of action accrued to the plaintiff against the defendant No.1?
4. Whether the agreement dated 04.04.2015 is executed between the plaintiff and defendant No. 1 and is challenged?
5. Whether the defendants Nos.2 and 3 are real owner of land in dispute?
6. Whether the Plaintiff is entitled for relief claimed?
7. Relief?
4. During the pendency of the suit, the respondent No. 1/defendant filed an application under Order VII, Rule 11, C.P.C. After arguments on the application, the learned trial Court rejected the suit of the respondent No.1/defendant on 26.02.2019.
Being aggrieved from the order dated 26:02.2019 passed by the learned trial Court, the respondent' No. 1/defendant filed an appeal under section 24 Dastur-ul-Amal Dewani Kalat before the appellate Court. During the pendency of , the appeal on 30.04.2019, the plaintif f/respondent No.1 filed an application under Order XXIII, Rule 1 and 2, C.P.C. for withdrawal of the suit to file afresh one, and on the same date, the learned appellate Court accepted the application under Order XXIII, Rules 1 and 2, C.P.C. of the respondent No.1/plaintif f. Hence this petition.
5. I have heard the learned counsel for the parties as well as learned AAG and perused the available record with their able, assistance.
6. The provision about the withdrawal of the suit are postulated under Order XXIII, Rule 1, C.P.C. which are reproduced as under:- "(i) 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 permi ssion to withdraw from such suit or abandon such part of a claim with liberty to institute afresh 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.
Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others."
7. From the clear language of the above, it is vivid and manifest that the above 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. And where the plaintif f has exercised his noted privilege, he shall be precluded from instituting a new 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), in that, where a plaintif f wants to file a new suit after the withdrawal of his pending suit on the basis of the same cause of action about the same subject matter and the same defendant(s), he shall then be obliged to seek the permission of the Court in that regard; however such permission shall not be granted as a matter of right or as a matter of course/routine, rather the judicial conscious of the Court should be satisfied that, if the permission is not given the said suit shall fail on account of any formal defect, there are other sufficient grounds for allowing the plaintif f to withdraw the suit with permission to institute a fresh suit; in respect of "sufficient grounds" no hard and fast criteria can be laid down, and it depends upon the facts of each case, whether a case in that regard is made out or not. However , it is the legal requirement that where the plaintif f is asking for the permission of the Court to file a fresh suit, in his request in that behalf, he must elucidate and explain to the Court the reason(s) for the withdrawal, justifying for the permission of the Court.
Likewise, the Court while allowing or disallowing the permission is duty-bound to advert to the reasons propounded by the plaintif f and to pass a speaking order assigning reasons for its conclusion meeting the objective requirement of rule of 'satisfaction' as is envisaged by sub-rule (2). Where the Court allows the requisite permission, the order in that behalf must spell out the objectivity test of 'satisfaction' so that it can be gauged and judged that the request of the plaintif f for withdrawal was/is not tainted with an oblique and mala fide motive; it is not meant to cause harm and prejudice to the defendant(s) and put him in disadvantageous position; and the requested not motivated to misuse the authority of the Court and abuse the process of law. The above principle was authoritatively affirmed by the Hon'ble Supreme Court in the case titled as Muhammad Yar (deceased) through L.Rs and others v.
Muhammad Amin (deceased) through L.Rs and others (2013 SCMR 464 ).
8. An identical point came under consideration before the Hon'ble Supreme Court of Pakistan in a case titled Haji Muhammad Boota and others v. Member Revenue Board of Revenue Punjab and others (PLD 2003 SC 979).
At page 991 of the report it was held as under:- "It was further held in the above case that the withdrawal would not be allowed if it results in perpetuating a fraud or injustice. The Court may in such circumstances decline the petitioner to withdraw the suit. The Court may also in appropriate cases where it comes to the conclusion that, the purpose of withdrawal of proceeding is only to prevent the Court from passing an order undoing a wrong or an injustice done to 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".
9. The point also came under the consid eration before the Lahore High Court, in case of Salma Khalil and three others v . Rashida Siddique and another (2000 CLC 260 ). At page 262 of the report it was held as under:- "I have considered the submissions made by the learned counsel for the parties. I have noticed that while granting permission to respondent No. 1 to file a fresh suit the learned first appellate Court did not specify the formal defect and permission was granted to responde nt No.1 to file a fresh suit for declaration. The contention of the learned counsel for the respondents that in the first suit a formal declaration as to the easement rights was not claimed which according to him amounted to a formal defect has no merit either . It is the substance rather than the form which should be looked into to determine the nature of relief claimed by a plaintiff in a suit. In paras 4 of the plaint the respondents had clearly pleaded easement. rights on account of prescription. Further , the suit was filed in 1992 and was decided on 8-12-1996 after parties had led the entire evidence and the merits of the claims of the parties were duly considered and adjudicated. The respondents could not, therefore, be permitted to take another chance in, the from of a declaratory suit"
10. A reading of the above-mentioned statutory law and precedents makes it abundantly clear that a suit can be withdrawn on the ground of any formal defect or other sufficient grounds. No formal defect was pointed out by the learned appellate Court in the suit filed by the private respondent. Before allowing withdrawal application, the satisfaction of the Court regarding formal defect or other suf ficient grounds was necessary .
11. In the case in hand, the plaintif f/respondent filed an application under Order XXIII, Rule 1 and 2, C.P.C. before the learned appellate Court and no formal defect was pointed in the said application which is reproduced for ready reference. {{URDU TEXT}}
12. The learned appellate Court was not passed a speaking order assessing the reasons for its conclusion made the objective requirement of the rule of satisfaction as envisaged by sub-rule (2). The impugned order dated 30.04.2019 is hereby reproduced for ready reference.
"30.04.2019: Called. Parties are present along with their respective counsel.
Today , the case was fixed for order meanwhile learned counsel for plaintiff/appellant Mr. Muhammad Faazi, Advocate filed an application under Orde r XXIII, Rules 1 and 2, C.P.C. We have perused the application and also heard the arguments, whereas, it is stated there are lacunas and infirmities and to fill in the same the application may please be accepted.
In view of above, in the interest of justice, an opportunity is allowed in view of his prayer . Subject to all just legal exceptions with no order as to cost".
13. The application moved for withdrawal of the suit with permission to file afresh one is completely silent as to any justification, reasons or formal defect which ought to be removed by filing a fresh suit and were not possible to be introduced by way of amendment in already pending suit/plaint. The appellate court also did not give any sufficient reasons for accepting the application. In view of Order XXIII, Rule 2(b), C.P.C. the existence of sufficient grounds is condition precedent for allowing the plaintif f to institute a fresh suit and as noted earlier the application discloses no justification for extending permission to the petitioner to file a fresh suit on the subject matter .
In view of the above discussion, the learned trial Court has committed gross irregularity and illegality while accepting the application under Order XXIII, Rules 1 and 2, C.P.C. of the respondent No.1/plaintif f as such the impugned order dated 30.04.2019 is hereby set aside. The appeal filed by the plaintif f/respondent No.1 shall be deemed pending before the appellate court with direction to the appellate Court to decide the appeal on merits after hearing arguments of learned counsel for the parties. Parties are directed to appear before the appellate court on 14.09.2020.