SULTAN TANVIR AHMAD, J. The present first appeal is filed against order dated 05.10.2020 passed by learned Additional District Judge, Bahawalnagar whereby, order dated 09.03.2020 passed by learned Civil Judge, Bahawalnagar, rejecting the plaint by invoking Order VII, Rule 11 of the Code of Civil Procedure 1908 (the 'Code'), is set aside and the case has been remanded.
2. The facts, necessary for the disposal of the present appeal, are that on 26.12.2017 respondents Nos. 1, 2, 3 and 5 filed suit (the 'First Suit') seeking declaration to the effect that they are lawful owners in possession of property measuring 96-Kanals located in Mouza Fatwera Hathar, as further described in the plaint (the 'Suit Property'), as successors of Bashir son of Muhammad and they also sought cancellation of sale mutation No. 295 dated 12.04.2001 (the 'Mutation') being illegal and outcome of fraud. The appellant side contested the First Suit, raising legal and factual disputes, however, almost one year after the institution of the suit, an application was filed and the suit was withdrawn by the respondents Nos. 1, 2, 3 and 5. Thereafter, on 05.04.2019 respondents Nos.
1 to 5 filed another declaratory suit (the 'Second Suit') with respect to the Suit Property. The learned trial Court rejected the plaint vide order dated 09.03.2020 while holding as follows:-- "The claim of the plaintiffs that any promise was made by the defendants to them is just to start the proceedings of this suit which is in violation of Order XXIII, Rule 1 (3) of C.P.C. I intend to impose costs upon the plaintiffs but restraining myself. In view of above discussion, the application under Order XXIII, Rule 1(3) of C.P.C. filed by defendants Nos. 1 to 3 and 7 is accepted resultantly, the plaint is rejected under Order VII, Rule 11 of C.P.C. with costs. Decree sheet be composed."
3. Respondents Nos. 1 to 5 assailed the aforesaid order by filing Civil Appeal No. 64 of 2020 on 19.03.2020. This appeal was accepted by the learned lower Appellate Court vide order dated 05.10.2020 and while setting aside above order the case has been remanded to the learned trial Court for decision afresh. Aggrieved from the same the appellants have filed the present appeal.
4. Mr. Khizar Hayat Abbasi, learned counsel for the Appellants has contended that the learned lower Appellate Court has clearly misinterpreted Order XXIII Rule 1 of the Code, which precludes respondents Nos. 1 to 5 from instituting the Second Suit on the subject matter and same cause of action; that Order VII, Rule 11(d) of the Code clearly attracted to the facts and circumstances of the case and the Second Suit is barred by law; that Order II, Rule 2 of the Code is also attracted to the case which has been totally ignored by the learned lower Appellate Court. It is vigorously argued by the learned counsel that in substance both suits are same, involving hardly any difference, which has been ignored. Learned counsel has added that the learned lower Appellate Court has fell to an error while concluding that law favours the adjudication of cases on merits and discourages its disposal on the basis of technicalities. He has asserted that the restriction or bar of law is not just a technicality rather these provisions created rights in favour of the appellants and ignoring the same is not acceptable in law. The learned counsel for appellants, during his arguments, has placed reliance on cases titled "Mst. Yasmeen and another v. Sahib Zarin and 6 others" (2013 CLC 1417), "Rozi Khan Gojar and another v. Mst. Rehmat Bibi" (2004 CLC 466), "Ghulam Abbas and others v. Mohammad Shafi through LRs and others" (2016 SCMR 1403), and case titled "Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs and others"(2013 CLC 464).
5. Conversely, Syed Muhammad Arfa Shahraz Bukhari and Rao Nasir Mehmood, learned advocates for the respondents Nos. 1 to 5 have argued that First Suit was not decided on merits, therefore, the Second Suit even though on the same subject does not fall within the scope of res judicata, hence the same is maintainable. The learned counsel for the said respondents, without prejudice to their above stance, have further submitted that the Second Suit is based on violation of compromise, on the basis of which the First Suit was withdrawn and as such the Second Suit involved a fresh cause of action, therefore, provision of Order XXIII, Rule 1(3) does not apply. The learned counsel for respondents have placed reliance on cases titled "Muhammad Yasin v. Additional District Judge-VII, West, Islamabad and others" (2022 MLD 186), "Muhammad Shafique and 4 others v.
Muhammad Rafique and another"(2012 YLR 2801), and "Qadir Bakhsh v. Saeed Ahmad Qureshi"
(2015 YLR 89). Ch. Shahid Mehmood, learned Assistant Advocate General, appearing on behalf of Respondents Nos. 6 to 8 has supported the contentions of the learned Counsel for the appellants as to the legal proposition and applicability of bar of Order VII, Rule 11, Order XXIII, Rule 1 and Order II, Rule 2 of the Code.
6. I have heard the arguments of learned counsel for the parties and perused the record with their able assistance.
7. The submissions of the learned counsel of the parties have essentially raised the following controversies:- (i). Whether restriction contained in Order XXIII Rule 1(3) of the Code is applicable to the Second Suit and the plaint is liable to be rejected under Order VII, Rule 11 of the Code being barred by law? and (ii). Whether unilateral statement given at the time of withdrawing First Suit, by the learned counsel of respondents Nos. 1, 2, 3 and 5, regarding purported compromise, can be accepted as a fresh cause, enabling the respondents to file the Second Suit?
8. Order XXIII Rule 1 reads as follows:-
(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" (after recording reasons)---
(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 pan 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) lie 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.
Plain reading of Order XXIII, Rule 1(1) of the Code suggests that at any time after institution of the suit, the plaintiff can withdraw the suit or abandon the claim in part or full, against any or all defendants. Order XXIII, Rule 1(2) empowers the learned trial Courts to allow the plaintiff to file fresh suit, on the terms as deemed fit, provided the learned Court is satisfied as to any formal defect in the suit or when sufficient ground for allowing to institute a fresh suit on the subject matter of the suit or part thereof are available to the plaintiff. Order XXIII Rule 1, sub-rule (3) of the Code clearly restricts plaintiff from instituting fresh suit in respect of same subject matter or part of the claim involved in the earlier suit withdrawn without permission in terms of Order XXIII, Rule 1(2).
9. Order II, Rule 2 of the Code requires to include the whole claim in one suit that a litigants is entitled to file in respect of the available cause(s) of action but when such litigant fails to include the part thereof, the same is deemed to be relinquished and he is excluded from bringing the suit within the jurisdiction of any Court.
10. The above provisions of law are clearly intending to achieve, inter alia, the purposes of (i) prevention of multiplicity of the suits,
(ii) restricting plaintiff from bringing new action after failing to conduct the first one with care and caution as well as due diligence, and
(iii) protecting defenders from being vexed twice for the same causes.
11. Through the First Suit, Respondents Nos. 1, 2, 3 and 5, have apparently pleaded all the available causes including (i) that they are owners in possession of the Suit Property as per their inheritance right being successors of Bashir son of Muhammad; (ii) that the predecessor-in-interest of the said respondents never sold the Suit Property to the appellants; (iii) that the Mutation is outcome of fraud and forgery; and (v) that respondents Nos. 6 to 8 (revenue department) have no authority to proceed or implement the Mutation.
When this suit was being contested, an application to withdraw the suit was filed, upon which the learned trial Court requisitioned the file for the same day and dismissed the suit as withdrawn, after recording the statement of the learned counsel for respondents Nos. 1, 2, 3 and 5. The thumb impressions of Ghulam Muhammad and Wazir (respondents Nos.1 and 3) as well as the signatures of the learned counsel (Mr. Muhammad Kashif Khakwani, advocate) are also available at the margins of the order sheet. No request for filing a fresh suit was ever made by the aforesaid respondents nor such permission was granted by the learned trial Court in terms of Order XXIII, Rule 1(2) of the Code.
12. After about six months of the above episode, the Second Suit was filed. Reading of the two suits reflects that the second one is a replica of the First Suit, besides the addition of Paragraph No. 7 and name Muhammad Younas (respondent No. 4) as plaintiff.
The added Paragraph No. 7 reads as follow:- Admittedly, the cause created in the above reproduced paragraph is exclusively based upon a self-serving statement dated 18.9.2018 whereby, an out of court compromise has been claimed, without even disclosing its terms and then respondents Nos. 1, 2, 3 and 5 sought to withdraw the suit, on the basis of the said compromise. Here, it is appropriate to reproduce the said statement:- Statement of counsel for the plaintiffs Mr. Muhammad Kashif Khakwani advocate.
Without oath stated that compromise has been effected between the parties and on the instruction of my clients, I do not want to press this suit further. Therefore, same may kindly be dismissed as having been withdrawn.
Sd/- R O & A C 18.09.2018 Civil Judge 1st Class, Bahawalnagar The question arises that as to whether the statement can be considered as a valid compromise or if the alleged violation of such statement can be taken as a cause to file fresh suit, avoiding the consequences provided in Order XXIII Rule 1(3) of the Code?
13. The statement dated 18.09.2018 is not just unilateral one but at the same time this statement was given in the absence of the opponent party and even without any notice on the application to withdraw the suit. There is hardly any cavil to the proposition that compromise can become effective only when the two or more parties agree to settle a real or supposed claim in which each party surrenders something in concession to each other. In case titled "Basaoo and others v.
Jagan Nath and another" (AIR 1931 Oudh 127) 'compromise' is defined as adjustment of claims with mutual concessions and promises of two or more parties at dispute. The following part of the said judgment is relevant:- "In Wharton's Law Lexicon, Edn.13, p.198, the word "compromise" has been defined as an adjustment of claims in dispute by mutual concession; also a mutual promise of two or more parties at difference to refer the ending of their controversy to arbitrators".
In the case titled "Fazal Maqsood and another v. Mst. Naseem Begum and 3 others" (2020 CLC 884) this Court has observed as follows:- "...Anyhow, a compromise is usually sign of weakness, or an admission of defect, which, however is a way of settling differences by making concessions to each other. Compromise comes from the Latin compromissum, which means 'mutual promise'. In order that a compromise be accepted, there are three conditions; (i) an adjustment of the suit; (ii) to the satisfaction of the Court; (iii) by means of lawful agreement or compromise."
14. The above unilateral statement given by the learned counsel for respondents Nos. 1, 2, 3 and 5 and that too in the absence of the other side, cannot be taken as mutual concession or mutual promise, having any binding effect, especially when the statement regarding the so-called out of court compromise is not backed by any document. Furthermore, the statement does not fulfill the requirements of Order XXIII, Rule 3 which necessitate satisfaction of the Court, as already elaborated in Fazal Maqsood case (Supra).
15. Even otherwise, if such an easy way of escaping the restriction contained in Order XXIII, Rule 1(3) of the Code, by simply giving unilateral statement as to compromise is permitted, the very purpose of the said provision shall be negated. I am further fortified in my view by the law laid down by the Honourable Supreme Court of Pakistan in cases titled Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others (PLD 2008 SC 146) and "Ghulam Abbas and others v. Mohammad Shaft through L.Rs. and others"(2016 SCMR 1403). It will be beneficial to reproduce the following extract from Ch. Ghulam Rasool case (Supra):- "...It is clear from the pleadings of the parties in the two suits that notwithstanding the nature of subsequent suit the real controversy between the parties in both the suits related to the ownership of the suit property and there was no fresh cause of action in favour of petitioner in the second suit. The legal position emerged from the facts in the background would that petitioner having withdrawn the earlier suit without permission of the Court to file fresh suit had relinquished his claim and thereby precluded to file a fresh suit on the same subject-matter therefore, the second suit to the extent of seeking the relief of declaration that "respondent was a benami owner of the house" would certainly being barred by law would not be maintainable whereas the suit relating to the grant of relief of specific performance of the contract on the basis of the alleged oral agreement that "respondent having acknowledged the ownership of the house of the petitioner agreed to surrender the title of the house in his favour", was not supported by any other evidence oral or documentary except the sole statement of petitioner and in absence of any proof of such a compromise/agreement between the parties, the assertion that second suit was filed on the basis of fresh cause of action would have no substance. This is noticeable that the terms of compromise were not mentioned either in the application moved by the petitioner for withdrawal of the suit or in the order passed by the learned trial Judge, on the said application and so much so nothing was brought on record to show that the application for withdrawal of suit was moved with the consent and knowledge of the respondent. The petitioner without brining nay cogent and convincing evidence on record to prove the existence of a valid agreement between the parties and substantiating his claim through any reliable evidence made an attempt to succeed in the suit merely taking the plea that respondent being a house wife would have no source of income to purchase the plot and construct the house."
(Emphasis supplied)
16. As far as the case of Muhammad Younis / respondent No. 4 is concerned, as already discussed, he was not the party in the First Suit and the statement dated 18.09.2018 given on behalf of remaining respondents is neither binding on him nor does it constitute relinquishment of any right of respondent No. 4 to claim.
17. In view of the above discussion, present appeal to the extent of respondents Nos. 1, 2, 3 and 5 is allowed and the impugned order passed by the learned Additional District Judge, Bahawalnagar to the extent of the said respondents is set-aside. No order as to costs.