RASAAL HASAN SYED, J. Appellant in this appeal seeks annulment of judgment/order dated 15.9.2017 of the learned Additional District Judge whereby the case was remanded for trial on merits.
2. Facts as will be material for the disposal of this appeal are that on 07.3.2016 respondents/plaintiffs instituted a suit for declaration, possession and permanent injunction, claiming to be owners of suit property through inheritance and the annulment of stamp document No.676 dated 19.3.2011 on the plea of being collusive and for the possession of the property with injunctive relief to restrain the petitioner from changing the nature and character of the suit property. Instead of filing of written statement the appellant/defendant filed an application dated 20.12.2016 for dismissal of suit on the ground that the earlier suit of petitioner was withdrawn with permission to file fresh one subject to payment of Rs.2,000/- as costs which having not been deposited or paid, the suit was not competent and was liable to be dismissed. Respondents reply to the application was received whereafter the learned Civil Judge allowed the application vide order dated 29.5.2017 observing that the suit being incompetent and improper, no proceedings could be held therein. Appeal filed by the respondent was accepted by the learned Addl. District Judge vide judgment and order dated 15.9.2017, in result, the order of the trial court was set aside and the case was remanded to resume proceedings from the stage the impugned order was passed with further direction that the respondent should pay a sum of Rs.2,000/- to the appellant before the court within seven days. In the instant appeal the judgment/order dated 15.9.2017 has now been assailed.
3. Learned counsel for the appellant submits that the order of the appellate court was legally untenable, provisions of Order XXIII, Rules 1 and 2, C.P.C. were misapplied or misinterpreted, the respondents having undeniably failed to pay or deposit the costs of Rs.2,000/- which was a condition precedent for the filing of a fresh suit the subsequent suit could not be entertained and that in view of their conduct as noted by the learned Civil Judge, they were not entitled to any discretionary relief by way of extension in time and that the appeal, having been filed against the order without challenging the decree, was not competent and that the order of the appellate court is based on complete misreading of law.
4. Learned counsel for the respondents contrariwise submitted that the order of the appellate court was fair, just and in accordance with law and that the rule of propriety and justice required that the dispute shall be decided on merits instead of non-suiting the party on a hyper-technical ground and that in view of the rule consistently laid by the superior courts the order of the trial court could not sustain and was rightly set aside by the court of appeal.
5. As noted supra, the respondents/plaintiffs brought a suit for declaration, possession and permanent injunction. An objection was raised through a miscellaneous application that it was not competent as the appellant's earlier suit was allowed to be withdrawn with liberty to file a fresh suit subject to payment of Rs. 2,000/- as costs; which having not been paid no proceedings could be taken in the subsequently instituted suit. The objection sustained with the trial court when the application was allowed vide order dated 29.5.2017 and suit was dismissed as incompetent. In appeal the order of the trial court was reversed and the case was remanded for decision on merits with a directive to the respondents to deposit amount of costs within seven days. As per appellant the view taken by the appellate court is legally untenable and that the suit being incompetent was rightly dismissed by the learned Civil Judge which order was incorrectly interfered with in appeal.
6. The provisions of Order XXIII, Rules 1 to 3, C.P.C. dealing with the grant of permission to withdraw the suit with liberty to file a fresh one on payment of costs remained subject-matter of consideration in various pronouncements in which different views were expressed. All these views were recapitulated and analyzed in the case of "Haji Abdul Rashid Sowdagar v. S. M. Lalita Roy and others" [PLD 1959 SC (Pak.) 2871 wherein the rule was settled as under: "...In some decisions it has been held that where a suit is permitted to be withdrawn with liberty to bring a fresh suit if costs are paid within a specified period, a suit instituted without the payment of costs is incompetent and must be dismissed. In others the view taken is that if any of the conditions on which permission to withdraw with liberty to bring a fresh suit was given has not been complied with, the second suit cannot be said to be in compliance with the conditions imposed, with the result that such suit is to be ignored and the original suit has to be tried. In the third set of cases sections 115 and 148 of the Civil Procedure Code have been applied to extend the time for payment and to make the second suit valid from the date of payment of costs. In the fourth category of cases the fresh suit instituted without complying with the conditions has been held to be incompetent under sub-rule (3) because in such circumstances the previous suit is considered to have been withdrawn under rule 1(i) of Order XXIII of the Civil Procedure Code.
Among the cases cited there is one from the High Court of East Punjab viz., Mela v. Labhu (AIR 1955 Pb. 97) where Bishan Narain, J., adopts an entirely new approach which substantially coincides with our own view.
The basic principle in bar of a party's right to sue is that he is not barred from suing unless the suit is barred by some provisions of the Civil Procedure Code. Such provisions are found in scattered places in the Civil Procedure Code, and the most important of them are section 11, Order II, rule 2, Order IX, rule 9, Rule 1 of Order XXIII...
Rule 2 provides that in any fresh suit instituted on permission granted under rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. It will be noticed on a perusal of sub-rules (1) and (2) that whereas under sub-rule (1) the plaintiff may withdraw his suit at any stage of the proceedings and without an order of the Court, under sub-rule (2) he has to obtain the permission of the Court for withdrawal and the Court's own power to permit withdrawal is limited to the instances, specifically mentioned in clauses (a) and (b).
Again, whereas the result of a withdrawal without permission under sub-rule (1) is that the plaintiff by sub-rule (3) is precluded from instituting a fresh suit, no such consequence is stated in sub-rule
(2) as following from the withdrawal of the suit and not complying with the conditions on which the permission to withdraw was given. It is, therefore, incorrect to apply sub-rule (1) to cases like this and to invoke the consequence stated in sub-rule (3) by holding that where a plaintiff to whom a permission to institute a fresh suit was given does not comply with the conditions on which he obtained the permission, he must be deemed to have withdrawn his suit under sub-rule (1). Nor is it correct to state that since the conditions on which the permission to institute a fresh suit was given has not been complied with the original suit must be deemed to be pending. The withdrawal is complete the moment an order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted. But sub-rule, (2) expressly states that in granting the permission the Court may impose "such terms as it thinks fit." If such terms have been imposed by the Court then the right to bring a fresh suit is curtailed because the fresh suit can be brought only if the conditions imposed by the Court are fulfilled. The question then is what would be the consequence if any of the terms on which permission to withdraw with liberty to institute a fresh suit was given is not fulfilled. The answer can only be that unless the condition is complied with there is no proper suit before the Court. In such a case the defendant is entitled and the Court has the power to demand that if the plaintiff wishes to proceed with the suit he must comply with the terms on which permission to withdraw was given. And leaving the question of limitation aside, the plaintiff may at any time comply with the terms and on proof that he has so complied may demand the Court to proceed with the suit: To put it in a different way, unless the plaintiff satisfies the Court that the terms on which he had received the permission have been satisfied there is no proper plaint before the Court, with the result that no proceedings on the plaint can be taken. The order of dismissal of the suit can, therefore, be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone bona fide delays, omissions, etc. Applying the above principle to the present case it must be held that the respondents complied with the condition when on an objection being taken by the appellant they expressed their willingness to deposit the additional costs and in compliance with the Court's order actually deposited the costs. The appeal, therefore, fails and is dismissed with costs."
(emphasis supplied)
7. In "Malang Dad v. Mst. Mah Pari and others" (PLD 1993 SC 6) a case in which the High Court after setting aside the concurrent judgments of the courts below dismissed the suit in revisional jurisdiction for the reason that the condition of payment of costs on which the permission to file a second/subsequent suit had been given, was not complied with and the suit therefore was not competent; it was observed by the honourable Supreme Court of Pakistan to the effect that notwithstanding the fact that the High Court could set aside the judgments of courts below on the ground that the condition of deposit of costs had not been complied with but in doing so the question had to be kept in consideration that whether it was a fit case for condonation of the noted omission keeping in view the ratio of the judgment of honourable Supreme Court of Pakistan in the case of Haji Abdul Rashid Sowdagar supra. It was ruled as under:- "9. However, we have noticed that while setting aside the concurrent judgments of the two Courts below, the learned Judge in Chambers, has not taken into consideration the question, whether it was a fit case for condonation of the above omission keeping in view the ratio of the judgment of this Court in the case of Haji Abdul Rasheed Sowdagar (supra), wherein this Court has held as follows:- "To put it in a different way, unless the plaintiff satisfies the Court that the terms on which he had received the permission have been satisfied there is no proper plaint before the Court, with the result that no proceedings on the plaint can be taken. The order of dismissal of the suit can, therefore, be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone, bona fide delays, omissions, etc."
10 ...
11. In our view, it will not be just and proper to deny two concurrent judgments in favour of the appellant on the above technical round, the High Court should have, in our view, directed the appellant to pay a reasonable amount as costs to the respondents besides the above amount of Rs.100 for condoning the above lapse on his part.
12. We are inclined to allow the appellant to pay above cost of Rs.100 plus a further cost of Rs.900 for the above omission on his part and to remand the case to the High Court for deciding the Revision Application of the respondents on merits.
13. Mirza Abdur Rashid, learned counsel for the appellant, pursuant to this judgment, has paid the above sum of Rs.1,000/- to Mr. Khalilur Rehman.
14. We would, therefore, allow the above appeal and set aside the impugned judgment and would remand the case to the High Court for disposal of the above Revision Application on merits."
(emphasis supplied)
The rule in the case of Haji Abdul Rashid Sowdagar was also followed in "Qamar Zaman and others v. Musammir Shah" (2000 SCMR 1730) wherein it was observed as follows: "7... Be that as it may, no time for payment of costs was specified in the order granting permission to the respondent to withdraw from the suit, the delay was condoned by the trial Court in exercise of its inherent powers and rightly so because the element of mala fide was missing, the inherent power exercised by the trial Court has been upheld by the Appellate Court as well as the High Court and the costs were admittedly paid by the respondent during pendency of the suit culminating in this petition. It was held in Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy and others (PLD 1959 SC 287) that the order of dismissal of the suit can be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit and that whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone bona fide delays, omissions etc."
Reference can also be made to "Umar Baz Khan through L.Rs. v. Syed Jehanzeb and others" (PLD 2013 SC 268) which was a case of non-payment of costs for restoration of Constitutional petition and wherein it was observed to the effect that second petition liable to be dismissed for non- payment of costs was a rule of procedure rather than law and that the same could not be applied to every case without taking its facts and circumstances into consideration and that failure to pay costs though of course a fault, was not of a magnitude as could be made a ground for dismissal of petition voicing grievance against an injustice of a grave nature and, more so, when it could be rectified by giving the litigant a chance to do the needful: "6. The first contention of the learned counsel for the appellant that the second petition was liable to be dismissed for non-payment of cost has not moved us as it being based on a rule of procedure rather than law, cannot be applied to every case with blithe disregard for its facts and circumstances. Failure to pay the cost is, of course, a fault but not of a magnitude as could be made a ground for dismissing a petition, voicing a grievance against an injustice of grave nature.
The more so when it can be rectified by giving the litigant a chance to do the needful. In the case of "Malang Dad v. Mst. Mah Pari and others" (supra), this Court while dealing with a similar situation held as under:- 10....
11. In our view, it will not be just and proper to deny two concurrent judgments in favour of the appellant on the above technical ground. The High Court should have, in our view, directed the appellant to pay a reasonable amount as costs to the respondents besides the above amount of Rs.100 for condoning the above lapse on his part".
8. Deeper review of the cases cited supra manifests that the consistent view expressed by the honourable Supreme Court of Pakistan in respect of the provisions of Order XXIII, Rules 1 to 3, C.P.C. has been that in case a suit is allowed to be withdrawn with liberty to file a fresh one subject to payment of costs, the filing of the suit without compliance of condition of deposit of costs will not be a proper presentation or institution of the suit; nevertheless the Court is not denuded of its jurisdiction to condone the default or omission of plaintiff.
9. The criteria for the exercise of discretion laid in the case of Haji Abdul Rashid Sowdagar is that the order for dismissal of suit could only be passed after it is found that the plaintiff, on an objection taken, is unwilling to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh one and that in case on an objection as to the competency of the suit, the plaintiff is willing to comply with the terms on which he was permitted to withdraw the suit, the Court will have inherent power to condone the bona fide delay or omissions, etc. It is noteworthy that rule in the case of the Haji Abdul Rashid Sowdagar was consistently followed in the subsequent cases by the Supreme Court of Pakistan as referred hereinabove. Learned counsel for the appellant placed reliance on the case "Mst. Taj Bibi deceased through L.Rs. v. Rana Salah ud Din" (2016 CLC 1621) and also the Order passed in Civil Appeal No. 1462 of 2015 titled "Rana Salah ud Din v. Mst. Taj Bibi deceased through L.Rs." of the honourable Supreme Court of Pakistan but the facts in the said case were bit different. The suit was decreed on merits by the courts below in the said case which was set aside in revision by this Court observing that the plaintiff therein could not prove any ownership and in respect of issue pertaining to maintainability of the suit due to non-deposit of costs, the same was returned in the negative. The aspect qua jurisdiction/discretion to condone default and to allow to deposit costs in the event the plaintiff in the suit expressed willingness outrightly to comply with the order of costs, appears to have neither been raised in the said case nor any deliberation were made therein and the rule in the cases referred supra particularly the case Haji Abdul Rashid Sowdagar was not referred to or considered nor is there any remote impression that the plaintiff therein had ever offered to deposit the amount of costs. This being so the case referred by learned counsel is distinguishable from the facts in the present case. It is evident that the judgment rendered in the case of Haji Abdul Rashid Sowdagar was by an honourable three-member Bench of the Supreme Court of Pakistan which was consistently followed in the subsequent cases of Malang Dad and Qamar Zaman supra while the order in the case cited by the petitioner was passed by an honourable two-member Bench of the Supreme Court of Pakistan. Being so, the rule, in the case of "Fatal Muhammad Chaudhri v. Ch. Khadim Hussain and 3 others" (1997 SCMR 1368) to the effect that if there is a conflict between two decisions of the honourable Supreme Court of Pakistan the decision of larger honourable Bench shall prevail, will be applicable in the instant case.
10. The learned Civil Judge passed the order of dismissal of suit in oblivion of his powers to condone the default and also the rule in the cases cited supra while the appellate court after considering all the relevant facts and judgments of the honourable Supreme Court of Pakistan observed that in the order dated 04.1.2016, by which the permission to withdraw the suit with liberty to file a fresh one was granted, no time limit was fixed and allowed time to the respondents to deposit the amount of costs following the dictum in the case of Qamar Zaman and the rule that justice shall be done at all costs and procedural technicalities shall not be allowed to hamper the way of doing justice. The order of learned Addl. District Judge, as such, does not suffer from any legal infirmity. It however appears that no additional costs was ordered to be paid by the respondents while granting discretionary relief. Being so, it is directed that the respondents shall also deposit Rs.5,000/- as additional costs over and above the amount of costs payable pursuant to initial order, within 30 days from the date of this Order. Accordingly, the order of learned Addl. District Judge shall be read as such.
11. As to the objection that the first appeal before the Additional District Judge was not competent under section 96 of. C.P.C. as decree was not specifically challenged, suffice it to observe that undeniably an application for dismissal of suit due to incompetency was allowed through the order impugned; nevertheless the decree-sheet was also prepared which was filed along with the order with the Memorandum of Appeal and, therefore, mere omission in the prayer clause to mention the decree will not render the appeal incompetent and the appeal could not be thrown out on this ground alone. Reference in this regard can be made to "Manzoor Hussain v. Zareeda Bi and 7 others" (2013 CLC 1186).
12. For the reasons hereinbefore instant appeal is dismissed.