Faisal Zaman Khan, J. Through this civil revision order dated 30.05.2022 passed by the learned Civil Judge, Lahore has been assailed, whereby application under Order VII Rule 11 CPC filed by the petitioner has been dismissed.
2. Succinctly, the facts of the case are that on the strength of an agreement to sell dated 19.02.2011 allegedly executed by the petitioner in favour of respondent Nos.1 and 2 a suit for specific performance was instituted by the said respondents on 02.01.2014. During the pendency of the suit, respondent Nos.1 and 2 filed another suit for specific performance, in which an application under Order VII Rule 11 CPC was filed by the petitioner, which was dismissed through the impugned order, hence, this civil revision.
3. Learned counsel for the petitioner submits that admittedly on 02.01.2014 respondent Nos.1 and 2 filed a suit for specific performance against the petitioner and during the pendency of the same another suit for specific performance was filed by the said respondents against the petitioner on the basis of the same agreement to sell and thereafter withdrew the earlier suit, therefore, the subsequent suit was not maintainable under Order XXIII Rule 1(3). He places reliance on judgments reported as Shahbaz Khan v. Additional District Judge, Ferozewala and others (2017 SCMR 2005), Abdur Rashid v. Mst. Akbar Jan and others (2003 YLR 2775), Ghulam Rasool and 12 others v.
Shana and 12 others (2001 MLD 661), Karamat Ali Khan and another v. Sardar Ali and 29 others {PLD 2001 S.C. (AJ&K) 30} and Messrs Artisans Craftsmen, Rehabilitation Society and 2 others v.
Mst. Asif Jahan Begum and 10 others (1990 MLD 1702).
4. Replying to the above, learned counsel for respondent Nos.1 and 2 submits that during the pendency of earlier suit filed by respondent Nos.1 and 2 for specific performance another suit was maintainable for the reason that keeping in view some changed circumstances and for seeking some additional relief subsequent suit was filed, which also included the relief of damages, therefore, the application under Order VII Rule 11 CPC has rightly been dismissed. He places reliance on judgment reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 S.C. 344).
5. Despite service and representation none has entered appearance on behalf of respondent No.3, therefore, he is proceeded against ex parte.
6. Arguments heard. Record perused.
7. From the perusal of the available record, it transpires that it is admitted between the parties that on the strength of agreement to sell dated 19.02.2011 allegedly executed by the petitioner in favour of respondent Nos.1 and 2 a suit for specific performance was filed by respondent Nos.1 and 2 against the petitioner and during the pendency of the said suit on 02.09.2014 another suit for specific performance was instituted by respondent Nos.1 and 2 against the petitioner, whereafter, respondent Nos.1 and 2 appeared in the former suit and sought permission of the learned trial court for withdrawal of their former suit and the same was granted vide order dated 19.09.2014 and they were allowed to withdraw their earlier suit with the permission to file one afresh.
8. The moot point, which requires determination by this Court, is that whether the subsequent suit instituted by respondent Nos.1 and 2 during the pendency of the earlier suit was hit by the bar contained in Order XXIII Rule 1(3) CPC. For better appreciation of the proposition the said Rule is reproduced here 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 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.
(4) 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."
(Emphasis supplied)
9. Placing the proposition highlighted in the present case in juxtaposition with the afore-referred provision of law, it has surfaced that the argument advanced by the learned counsel for the petitioner is not tenable for the reason that the words in which Order XXIII Rule 1(3) CPC are couched, it does not preclude a plaintiff from filing multiple suits on the same subject matter as it merely places an embargo on a plaintiff to file a suit on the subject matter, which he has already withdrawn/abandoned without seeking permission of the court to re-agitate the same.
10. The above proposition has been dealt with and elaborated in judgments reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344), Hira Singh v. Puran and another (A.I.R. 1930 Lahore 599(1) and Ram Mal v. Upendra Datt and another (A.I.R. 1928 Lahore 710) and it has been held that if during the pendency of a suit, without withdrawing the same, on the same subject matter, a subsequent suit is filed, , the subsequent suit will be maintainable and by no means will hit by the bar contained in Order XXIII Rule 1 CPC.
11. For the sake of argument, the objection of the petitioner to the subsequent suit can be termed to be that it is hit by principle of Res judicata as contemplated in section 11 CPC.
12. While interpreting the above provision, the Honourable Supreme Court of Pakistan in judgments reported as Mustafa Kamal and others v. Daud Khan and others (PLD 2004 SC 178) and Mrs. Irene Wahab v. Lahore Diocesan Trust Association (2002 SCMR 300) has held that if a suit is not decided on merits the same would not constitute or operate as Res judicata.
13. In the above backdrop, this court is of the view that since the previous suit filed by respondent Nos. 1 and 2 was at the preliminary stage and no adjudication was made by the learned trial court on merits, hence, keeping in view the changed circumstances and the additional relief claimed in the subsequent suit, the latter suit was maintainable despite the pendency of the previous suit, which was subsequently withdrawn, hence, the learned trial court has rightly dismissed the application under Order VII Rule 11 CPC.
14. As regards the judgments cited by the learned counsel for the respondents No.1 & 2, since the Honorable Courts were not properly assisted while rendering those judgments as the judgment of the Honourable Apex Court passed in the case of Ghulam Nabi & another supra was not cited, hence, the judgments are distinguishable. It shall be apposite to mention here that despite the fact that the judgment of Ghulam Nabi & another supra was referred to the Honourable Judge in the case of Abdur Rashid supra (cited by the learned counsel for the petitioner), the said judgment was neither considered nor distinguished.
15. Since the learned counsel for the petitioner has not been able to point out any jurisdictional defect or procedural impropriety in the impugned order passed by the learned Civil Judge, Lahore, therefore, no interference can be made by this Court.
16. For what has been discussed above, this revision petition being devoid of any merits is dismissed.