CH. MUHAMMAD IQBAL, J:- Through this civil revision, the petitioners have challenged the legality of order dated 10.12.201 1 passed by the learned Civil Judge, Hafizabad who accepted the application filed by the respondents and rejected the plaint of the suit under Order VII Rule 11 CPC filed by the petitioners and judgment & decree dated 19.04.2012 passed by the learn ed Addl. District Judge, Hafizabad who dismissed the appeal of the petitioners.
2. Brief facts of the case are that the petitioners filed suit for declaration alongwith permanent injunction against the respondents/ defendants and during the pendency of the first suit, they filed second suit whereafter withdrew the first suit on 15.12.2010. In the second suit, respondents filed an application under Order VII Rule 11 CPC for rejection of plaint on the ground of non-m aintainability . This application was accepted by the learned trial court who vide order dated 10.12.201 1 rejected the plaint of the suit filed by the petitioners. The appeal of the petitioners was also dismissed by the learned appellate court vide judgment & decree dated 19.04.2012. Hence, this civil revision.
3. I have heard the learned counsels for the parties at full length and gone through the record with their able assistance.
4. Admittedly , the petitioners filed first suit for declaration titled as "Sardaran Bibi etc. Vs Rehma etc. on 18.01.2008 and during the pendency whereof they instituted the second suit titled as "Sardaran Bibi etc. Vs Rehma etc." on 29.10.2010 and withdrew their first suit on 15.12.2010 by making a statement that he had filed another suit. In second suit, respondent s filed an application under Order VII Rule 11 CPC for rejection of the plaint. This application was accepted by the learned trial court who rejected the plaint under Order VII Rule 11 CPC on the ground that second suit is barred under Order XXIII Rule 1 CPC. The petitio ner assailed the above order in appeal which was dismissed by the appellate court who upheld the order of the trial court vide judgment & decree dated 19.04.2012. second suit thereafter the withdrawal of the first suit, the In this case, the only question is whether after filing of second suit is barred by law and plaint of the said second suit is liable to be rejected under Order VII Rule 11 CPC. To answer this question, it is appropriate to have a glance on order XXIII Rule 1 CPC which is as under:-
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 permi ssion 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.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
The above provision does not bar the filing of second suit before withdrawal or abandonment of any portion of the first suit. The bar of Order XXIII rule 1 applies only to suit instituted after withdraw al or abandonment of previous suit. Reliance is placed on the case titled as Mangi Lal & Another Vs Radha Mohan & Another (A.I.R. 1930 Lahore 599(2)] wherein it is held that "It is obvious that O, 23, 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.
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 this Court in Ram Mal v . Upendra Datt A. I. R. 1928 Lah. 710 , a case similar to the present ."
Where a suit is already pending before the institution of fresh/ new suit and previous suit is withdrawn , the provision of Order XXIII, rule 1, CPC would not be applicable. Order XXIII, rule 1 CPC 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 CPC cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. Reliance is placed on the case titled as Haji Ashfaq Ahmad Khan & Others Vs Custodian of Evacuee Property , Pakistan & Others [PLD 1966 (W.P) Karachi 597(D.B)] wherein it is held that "We are of the view considering the principle underlying Order XXIII rule 1, C.P.C. that where a suit is already pending before the previously instituted suit is withdrawn the provision of Order XXIII, rule 1 C. P. C. would not be applicable. In this connection Mr. Muhammad Bux A. Memon, the learned Advocate for the petitioners relied on a Division Bench case of the Lahore High Court, Mangi Lal v. Radha Mohana (1). It was held in that case that Order XXIII, rule 1, C.
P. C. refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn.
During the pendency of one petition, another writ petition was filed. Previous petition was withdrawn before reaching stage of hearing on merits, as such, second writ petition could proceed legally in spite of withdrawal of previous petition. Reliance is also placed on the case titled as The Commissioner of Income-T ax N.C.A. Circle, Karachi & Another Vs Haji Ashfaq Ahmad Khan & 10 Others (PLD 1973 SC 406), wherein it is observed that "We may add that the right given under Article 98 of the 1962-Constitution was a constitutional right an unless there was an express bar to the contrary , Writ Petition No.638 of 1962 could proceed legally in spite of the fact that Writ Petition No.416 of 1962 had been withdrawn before it had reached the stage of hearing on merits."
Order XXIII Rule 1 CPC deals with the withdrawal of suit. Suit filed previously was withdrawn after filing the fresh suit and such fresh suit held not barred under Order XXIII rule 1. Reliance is placed on the case titled as Abdullah & 8 Others Vs Bashiran Bibi & 4 Other s (PLD 1981 Lahore 336), wherein this Court held that "The finding of the learned Addl. District Judge that the suit out of which this second appeal has arisen was not hit by the provisions of Order XXIII rule 1 of the Code of Civil Procedure is therefore, unexceptionable." Reliance is also placed on the case titled as Irshad Ali Vs Islamic Republic of Pakistan & 2 Others (1981 CLC 111). Further second suit will not be barred in case of withdrawal of previous suit as settled by the Hon'ble Supreme Court of Pakistan in a case titled as Ghulam Nabi & Others Vs Seth Muhammad Yaqub & Others (PLD 1983 SC 344) wherein it is held that "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 (1) relying on P. Surja Reddi v. Subba Reddi (2), 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 (3) 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 suit which has already been instituted before the other suit had been abandoned or dismissed."
This judgment had been followed in Abdullah v. Bashiran Bibi (4) and it had been held that a fresh suit which bad 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 Ahmad (5), 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 procee d in spite of the withdrawal of the previous petition. The Sind High Court has also been of the same view which is reflected in its judgments reported as Ashfaq Ahmad Khan v. Custodian of Evacuee Property (6) and Irshad Ali v. Islamic Republic of Pakistan (7). 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."
5. The aforementioned facts and consistent law on the subject has not been taken into consideration by the learned courts below who illegally passed the impugned order and judgment against the record and misapplication of law which are not sustainable and liable to be set-aside. Reliance is placed on the case titled as Nazim-ud-Din and Others v . Sheikh Zia-Ul-Qamar and Others ( 2016 SCMR 24 ).
6. In view of above, this civil revision is allowed . Order dated 10.12.201 1 passed by the learned Civil Judge, Hafizabad and judgment & decree dated 19.04.2012 passed by the learned Addl. District Judge, Hafizabad are hereby set aside and suit filed by the petitioners shall be deemed pending. The learned trial court is directed to decide the case as early as possible.