ROZI KHAN BARRECH, J. This Civil Revision Petition in terms of section 115 of The Code of Civil Procedure (V of 1908) (hereinafter referred to as ("C.P.C.") arises out of order dated 18.05.2019 (hereinafter "the impugned Order") passed by learned Additional District Judge, Kuchlak (hereinafter "the appellate Court") wherein the appeal filed under section 96, C.P.C. by the respondents Nos.1 and 2 was accepted and the application under Order XXIII, Rules 1 and 2, C.P.C., filed by the petitioner was dismissed.
2. Epitomized facts necessary for adjudication of the instant petition are that the petitioner/plaintiff filed a suit for declaration and permanent injunction before the learned Judicial Magistrate/Civil Judge, Kuchlak (hereinafter "the trial court"), with the averments that the petitioner is the owner in possession of the land bearing Khasra No.828 and 4 Qitta, measuring 14 Rod 0 Pole and 0 Rod 36 Poles, situated at Mahal Viala Samali, Mouza Samali, Tappa Kuchlak, in pursuance of mutation Nos.25 and 116 whereof a school has been constructed by the petitioner and handed over to the Iqra Ahsan-ul-Altaf English Educational Academy. It is further averred in the plaint that the school in question was peacefully running over the property in question but meanwhile the respondents Nos.1 and 2 started occupying the adjacent land on eastern side of the property in question by way of constructing four shops thereon, despite the fact that they have no concern or connection with the property in question, nor have any documents or authority with them.
3. The respondents Nos.1 and 2 resisted the suit, being the defendants. While submitting their written statements, they controverted the assertions contained in the plaint.
4. When the suit of the petitioner was in progress the petitioner filed an application under Order XXIII, Rules 1 and 2, C.P.C. for withdrawal of the plaint with permission to file a fresh one. The said application was contested by the defendants/respondents Nos.1 and 2 after filing a rejoinder of the same. However, the learned trial court, after hearing the parties, allowed the application of the petitioner on 25.02.2019.
Being aggrieved and dissatisfied from the impugned order dated 25.02.2019, the respondents filed a civil appeal before the learned appellate court, which was accepted, and the application filed by the petitioner under Order XXIII, Rules 1 and 2, C.P.C. before the trial court was dismissed on 18.05.2019, whereafter the instant revision petition has been filed.
5. I have heard the learned counsel for the parties and have gone with the material available on record with their 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- "(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 afresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraw 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) ratifies the plaintiff 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 plaintiff 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 plaintiff 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 plaintiff 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 plaintiff 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 plaintiff 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 plaintiff 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; 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 consideration before the Lahore High Court, in the case of Salma Khalil and 3 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 respondent 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 trial court in the suit filed by the plaintiff/petitioner. Before allowing the withdrawal application, the satisfaction of the Court regarding formal defect or other sufficient grounds was necessary.
11. The petitioner filed an application under Order XXIII, Rules 1 and 2, C.P.C. before the learned trial court and no formal defect was pointed in the said application, which is reproduced for ready reference.
"2. That at the time of filing of instant suit, the applicant/plaintiff committed some clerical and technical mistake in his suit and not mentioned 2000 sqft through agreement which illegally occupied by respondent by constructing shops. In this regard the plaintiff/applicant moved an application before this Hon'ble Court for amendment of this suit on 20.10.2018. However, this Hon'ble Court rejected the instant application with observation that the nature and character of the suit will be changed if amendment is allowed. Such defect amounts to formal defect which can only be cured through filing of fresh suit, hence this application".
12. After perusal of the record it further reveals that the local Commissioner was appointed by the learned trial court who submitted his report. After submission of the report of the local commissioner, the petitioner/plaintiff filed an application under Order XXIII, Rules 1 and 2, C.P.C., for withdrawal of the suit with permission to file a fresh one with a new plea which caused harm and prejudice to the defendants/respondents and also put them in a disadvantageous position. 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 afresh suit and were not possible to be introduced by way of amendment and the application of the amendment which was filed by the petitioner/plaintiff has already been dismissed by the trial court.
In view of the above discussion, no illegality or irregularity whatsoever has been committed by the appellate court; as such, the instant revision petition is meritless; therefore, the same is dismissed.