M IANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner Muhammad Yonas assails the order dated 03.10.2022 passed by the Court of the learned Civil Judge, Islamabad whereby respondent No.2's application for the withdrawal of the suit for specific performance of agreement dated 21.08.2021 and permanent injunction was allowed with permission to file afresh subject to the payment of cost of Rs.50,000/-.
2. Learned counsel for the petitioner submitted that the learned Civil Court erred by not appreciating that the application for withdrawal of the suit with permission to file afresh could only be granted if the Court is satisfied that the suit would fail by reason of some formal defect or there were other sufficient grounds for allowing conditional withdrawal; that respondent No.2 in his application for withdrawal did not identify any formal defect in his suit; that the impugned order dated 03.10.2022 whereby respondent No.2's application for withdrawal of the suit with permission to file afresh was allowed resulted in undue advantage to him; that the application for withdrawal was filed almost one year after the filing of the suit; that the grounds given in the application for withdrawal cannot be treated as "sufficient grounds" for allowing respondent No.2 to institute a fresh case against the petitioner; that there is no precedent where negligence of an applicant's counsel is considered to be sufficient cause for allowing an application for withdrawal of a suit with permission to file afresh; and that respondent No.2's application for withdrawal of his suit with permission to file afresh is nothing but a nefarious design to embroil the petitioner in wasteful litigation. Learned counsel for the petitioner prayed for the writ petition to be allowed and for the impugned order dated 03.10.2022 to be set-aside.
3. On the other hand, learned counsel for respondent No.2 submitted that respondent No.2 had, on 11.10.2022, already instituted a fresh suit for specific performance against the petitioner; that in the subsequent suit, respondent No.2 has already deposited the remaining sale consideration; that the petitioner decided to file the instant writ petition after they received notices in the subsequent suit; and that since the learned Civil Court in allowing respondent No.2's application for the withdrawal of the suit with permission to file afresh has not exercised discretion in an arbitrary or unlawful manner, the instant petition is liable to be dismissed. Learned counsel for respondent No.2 prayed for the instant writ petition to be dismissed.
4. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
5. The record shows that on 30.10.2021, respondents No.2 and 3 had filed a suit for specific performance of agreement dated 21.08.2021 against the petitioner before the Court of the learned Civil Judge, Islamabad. The said suit was contested by the petitioner by filing a written statement.
From the divergent pleadings of the contesting parties, the learned Civil Court framed issues vide order dated 14.03.2022. Thereafter the case was adjourned on four occasions for the recording of evidence. On 12.09.2022, respondent No.2 submitted an application for the withdrawal of the suit with permission to file afresh. The ground taken in the said application was that due to the negligence and unprofessional behavior of respondent No.2's counsel, Mr. Fakhar Inayat Raja, the suit has been brought to a stage where it would not be proceedable, and that the legal advice given by the said counsel was against the interests of respondent No.2. Along with the written comments filed by respondent No.2, he has also annexed a copy of the legal notice dated 06.09.2022 sent by him to his counsel.
6. It ought to be mentioned that along with the suit instituted by respondents No.2 and 3, an application for interim injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 ("C.P.C.") had been filed. The learned Civil Court had allowed the said application vide order dated 16.03.2022. The petitioner's appeal against the said order dated 16.03.2022 was allowed by the learned Appellate Court vide order dated 13.09.2022. This order passed by the learned Appellate Court attained finality because on 12.09.2022, respondent No.2 had filed the application for withdrawal of the suit with permission to file afresh and on 03.10.2022, the said application was allowed by the learned Civil Court.
7. Perusal of the impugned order dated 03.10.2022 shows that the learned Civil Court had not been made aware of the appellate order dated 13.09.2022. The said order dated 13.09.2022 shows that the learned Civil Court had granted an injunction primarily on the ground that respondent No.2 had prepared pay order No.3597692 for Rs.7.6 million drawn on the Bank of Punjab in favour of the petitioner as the remaining sale consideration. The Appellate Court carried out a process to verify whether the said pay order had been issued and whether it was still a valid tender. Paragraph 6 of the appellate order dated 13.09.2022 shows that an employee of the Bank of Punjab had submitted a report according to which the said pay order had been cancelled on 04.02.2022 on the request of respondent No.2. Since, in a suit for specific performance, it is essential for the plaintiff to show that he is ready, willing and able to perform his part of the contract, the cancellation of the said pay order by respondent No.2 (who was one of the plaintiffs in the suit) would clearly have an adverse bearing on his suit. In order to avoid the adverse consequences of the cancellation of the pay order, it is my view that respondent No.2 submitted an application for the withdrawal of the suit with permission to file afresh. He did so in order to be given a fresh opportunity to show his bonafides, readiness and willingness to perform his part of the contract. It is not disputed that in the subsequent suit instituted by respondent No.2, the remaining sale consideration has been deposited.
8. There is no mentioned in the Civil Court's order dated 03.10.2022 of the Appellate Court's order dated 13.09.2022. The vital question that needs to be answered is whether the learned Civil Court would have allowed respondent No.2's application for withdrawal of the suit with permission to file afresh, had it been in its knowledge that respondent No.2 had cancelled the pay order for Rs.7.6 million which he had earlier prepared for payment of the remaining sale consideration and on the basis of which he was able to obtain an injunctive order from the learned Civil Court. The developments that had taken place during the pendency of the appeal were of vital importance and should have been brought to the notice of the learned Civil Court before the impugned order dated 03.10.2022 was passed. The cancellation of the pay order on the instructions of respondent No.2 would also be of relevance in determining his bonafides and good faith which is essential where equitable relief of specific performance is sought from a Court.
9. It is all very well for respondent No.2 to have blamed his counsel in his application for withdrawal with permission to file afresh but it is also to be noted that the pleadings in the application for withdrawal are vague and ambiguous. The first suit for specific performance may have been drafted by the counsel but it had remained pending for almost one year. At no material stage had respondent No.2 sought an amendment in the plaint. Respondent No.2 had not pleaded with particularity the professional misconduct, if any, on the part of his counsel in his application for withdrawal of the suit. Furthermore, respondent No.2 could also not point out the ill advice that his counsel had given him.
10. A suit may be withdrawn with permission to file afresh on such conditions as the Court thinks fit, if it is found that the suit must fail by reason of some formal defect or there are sufficient grounds for allowing conditional withdrawal. Learned counsel for respondent No.2 could not point out any formal defect that his first suit for specific performance had been suffering from. A vague and ambiguous allegation of misconduct made by an applicant against his counsel in his application for withdrawal of the suit with permission to file afresh cannot be considered as sufficient ground for allowing such an application.
11. The learned Civil Court ought to have realized that the suit was at the stage of the recording of evidence when the application for its withdrawal with permission to file afresh was filed. If the Courts are to allow such applications at an advanced stage of a case only on the ground that the applicant blames his lawyer for misconduct, the particularities whereof are not mentioned in the application, it would defeat the ends of justice.
12. In view of the above, the instant writ petition is allowed, the impugned order dated 03.10.2022 passed by the learned Civil Court is set-aside. The matter is remanded to the learned Civil Court with the direction to decide respondent No.2's application for the withdrawal of the suit with permission to file afresh after hearing the contesting parties and bearing in mind the contents of the order dated 13.09.2022 passed by the learned Appellate Court in civil appeal No.99/2022.
13. In his written arguments, respondent No.2 has contended that in the event the instant writ petition is allowed, he may be given an opportunity to deposit the remaining sale consideration before the learned Civil Court. Now that the writ petition has been allowed, there is nothing stopping respondent No.2 from making an application in this regard before the learned Civil Court which may be decided in accordance with the law.
14. Since the impugned order dated 03.10.2022 has been set-aside and the matter has been remanded to the learned Civil Court, the proceedings in the subsequent suit shall be deemed to be of no legal consequence.