1. ' These are two miscellaneous applications. One application is filed under Order XXIII, rule 1, C.P.C.
2. Read with section 151, C.P.C. (C.M.A. No,4103/76) by the plaintiff for withdrawal of suit with no order as to cost and the other application under Order XXII rules 1 and 2, read with section 151, C.P.C. Is filed by the heirs of late Mst. Atia Begum to add their names in place of the deceased Intervener.
3. Both the applications are contested.
4. ' Before considering the above applications it is necessary to mention here in brief the background of the present controversy between the parties. The plaintiff who is son of deceased Wing Commander Abdul Rashid Malik filed the above suit against his mother, defendant No,1, and sister defendant No,2. A consent preliminary decree was passed in the suit on 9th May, 1970, which amongst other provided for sale of the immovable property namely bungalow bearing No,43, F/B, Block 6 P.E.C.H.S. Karachi, by the Administrator appointed under the preliminary decree. After protracted proceedings the sale of property was finally approved by the Court on 28th October,1974 by accepting the offer of late Mst.Atia Begum widow of Habibul Hassan for a sum of Rs,2,11,000. After the offer made by late Mst.Atia Begum was accepted by the Court the defendants filed two applications. One under section 151, C.P.0 praying for setting aside the order, dated 28th October, 1974, accepting the offer of late Mst. Atia Begum for Rs,2,11,000 alleging that the defendants had received another firm offer for Rs,2,20,000 from one Rana Saeed Akhtar which they passed on to their Advocate for communicating the Court but unfortunately same could not be communicated as at the time of the Court passed orders accepting the offer of late Mst.Atia Begum their Advocate Mr.Muzaffar Ali Khan had to leave the Court for a shortwhile to attend to some other pressing work before another bench in the same Court. In the other application which was filed under section XXIII, rule 2, C.P.C, the defendants prayed that the Administrator be directed to mutate and transfer the property in the name of defendant No,1, free from all encumbrances and the preliminary decree be amended accordingly. Both the above applications were, however, rejected by a learned Single Judge of this Court (as he then was) and the offer of Mst. Atia Begum who voluntarily agreed to enhance her offer to Rs,2,20,000 was confirmed by the Court. The order passed by the learned Single Judge dismissing the above applications was challenged before the Supreme Court but without any success. The result, therefore is that the sale of the property in favour of late Mst.Atia Begum stands confirmed by the Court. After termination of the proceedings as aforesaid the plaintiff filed C.M.A. No,4103/76 for withdrawal of the suit and this application is supported by the defendants but is vehemently opposed by L.Rs, of late Mst. Atia Begum. As Mst.Atia Begum died during pendency of these proceedings, her L.Rs, have applied to be substituted in her place (C.M.A. No,5149/78) and his application is strongly opposed by the plaintiff and defendants in the suit.
5. ' I will first deal with the application for withdrawal of suit filed by the plaintiff. The learned counsel for the plaintiff contends that the right of the plaintiff to withdraw the suit is unfettered and this right can be exercised by a plaintiff at any stage of the suit. It is contended that by passing of a preliminary decree in the suit the proceedings do not come to end until such time a final decree is passed by the Court and as such plaintiff can validly withdraw a suit before passing of a final decree in the suit. Alternatively, it is contended, that the preliminary decree passed in the suit, has determined the rights of the parties thereto and therefore, a third party cannot oppose withdrawal of the suit, if the parties to the suit are agreeable to it. On the other hand the learned counsel for L.Rs of Mst. Atia Begum contends that after passing of a preliminary decree in a suit the rights of the parties are determined and as such thereafter the plaintiff does not enjoy absolute right to withdraw the suit. Number of decided cases were cited at the bar on either side to support their respective contentions. The learned counsel for the plaintiff relied on the cases of Group Capt.
6. M.Murad v. Mushtaq ahmed (PLD 1975 Kar.327), Hulas Rai Baijnath v. K.B. Bass and Co. Limted (AIR 1963 All. 368) and Hassan Badshah v. Sultan Razia Begum (AIR 1949 Mad. 772). In the first noted case the application for withdrawal of the suit by the plaintiff was opposed by one of the nine defendants in the suit. The contention of the defendants who was opposing withdrawal of the suit was that the property of the company was being managed and supervised by the two Receivers appointed by the Court and since the application for withdrawal of the suit was not consented by the Receivers and the result of the withdrawal of the suit will be termination of the appointment of Receivers, the plaintiff cannot be permitted to withdraw the suit as it was likely to cause prejudice to the defendants who was a shareholder in the company. The Court repelled the above contentions and allowed withdrawal of suit. In the second case, a suit was filed by the partnership firm against its agent for rendition of account. Before framing of issues in the suit an application for withdrawal of the suit by the plaintiff was made without reserving liberty to file fresh suit. It was contended by the defendant in that suit that the application for withdrawal of the suit was not a bona fide one. The Court overruled the objection raised by the defendants in the above suit and held that the plaintiff had an absolute right to withdraw the suit unconditionally under Order XXIII, rule 1, C.P.0 in the absence of a preliminary decree, award or compromise or any adjudication of the right of the parties and accordingly the suit was allowed to be withdrawn. In the noted case the Court held that the plaintiff has absolute right to withdraw the suit unconditionally without reference to the convenience of defendant and without obtaining beforehand the permission of the Court. However, in this case also the Court held that there is a limit to the exercise of the right of withdrawal of suit by the plaintiff, as for instance in a suit for partition or in a suit for taking of the accounts of a dissolved partnership where a preliminary decree has been passed which determined the rights of the parties or where parties arrive at a compromise with reference to the subject-matter of the litigation creating mutual rights and obligations between them, it is not open to plaintiff after such decree or compromise to withdraw the suit and thereby nullify the decree or the compromise. The learned counsel for L.Rs, of Mst. Atia Begum, on the other hand referred to the decisions in the cases of Sat Parkash and another v. Bahal Rai and another (AIR 1931 A11.386), Annamalai v. Koothapaudayar (AIR 1934 Mad. 485) Lachmi Narayan v. Balmakund (AIR 1924 P C 198) and Masulipatan Municipality v. Venkatappayya (A r R 1960 A. P. 572). In Sat Parkash case, a full bench of Allahabad High Court, held a preliminary decree is conclusive as regard the Court that passes it, and is only subject to alteration by the appellate Court when an appeal is preferred aganist it. In Annamalai's case, Madras High Court held that a pliantiff can exercise the right to withdraw the suit until a right in the defendant in the continuation of the suit or its determination in a particular. Way has been legally created namely by a preliminary decree or a compromise or agreement or award. In Masulipatan Municipality, case the Court observed that after a preliminary decree is passed under the provisions of Order XX, rule 13, a plaintiff is not entitled to withdraw the administration suit filed by him.
7. After careful examination of the above cases, I am of the view that under Order XXIII, rule 1, C.P.C. a plaintiff has right to withdraw the suit unconditionally without reference to the inconvenience likely to be caused by such withdrawal to the defendant and no prior permission of Court is necessary in this regard. Such right of withdrawal possessed by the plaintiff is also not affected on account passing of an interim order in the suit in the nature of appointment of Receiver or grant of an interim injunction by the Court. However, where in a suit the Court passes a preliminary decree which determines the rights of the parties or fixes further course of proceedings or the suit is terminated by a compromise between the parties or an award is given by the arbitrator upon reference in the suit the plaintiff cannot withdraw the suit and thereby nullify the effect of a preliminary decree or a compromise arrived at between the parties or the award in the suit. It is true that after passing of a preliminary decree in a suit, the Court still has seizin over the case for the purpose of passing a final decree in the suit but it cannot be ignored that a party omitting to challenge the preliminary decree in a suit cannot challenge it while appealing against the final decree in the suit. A preliminary decree in a suit can only be modified, altered or set aside in an appeal by the appellate Court.
8. ' The learned counsel for the plaintiff and the defendants jointly contended that the effect of a preliminary decree passed in the suit is confined to the parties to the suit and a third party or a intervener cannot resist withdrawal of the suit by the plaintiff if the defendants have no objection to it. The contention of the learned counsel has not impressed me. If a defendant in a suit can resist withdrawal of suit of plaintiff on the ground that a preliminary decree has been passed in the case which has the effect of determining rights of the parties and fixing future course of conduct of the proceedings, I see no reason why a third party in whose favour a right is created under the preliminary decree cannot resist withdrawal of suit by the plaintiff, if such an action would result in destroying the rights lawfully acquired by him. In the case before me it is an admitted position that the property in dispute was ordered to be sold through the Administrator appointed in the suit under the preliminary decree and the sale in favour of late Mst. Atia Begum was confirmed by the Court as late on 28th October,1974. An earlier attempt by the plaintiff and the defendants in the suit to get the order of confirmation of sale set aside by means of an application under Order XXIII, rule 2, C.P.C. Filed before the Court failed and the order passed by a learned Single Judge of this Court in this regard was upheld by the Supreme Court. In these circumstances I am of the view that the plaintiff and defendants cannot nullify the rights acquired by late Mst.Atia Begum by confirmation of the sale of property in her favour under preliminary decree passed in the suit by withdrawing the suit now. I, therefore, find no hesitation in rejecting the application under Order XXIII, rule 1, C.P.C.
9. Filed by the plaintiff.
10. ' I will now revert to the application filed by the heirs of the intervenor to substitute their names in place of Mst. Atia Begum. This application is opposed by the plaintiff and the defendants in the suit on the ground that Order XXII, C.P.C. Does not apply in the present case. It is true that provisions of Order XXII, C.P.C. Deals with the application filed either by the L.Rs, of plaintiff or the defendant in the suit but this does not mean that the Court is powerless to do full justice between the parties just because the Code of Civil Procedure does not contain specific provision to deal with a particular situation. It is an accepted position that in the absence of a specific provision in the Code of Civil Procedure providing for the procedure to deal with a particular situation, the Court in exercise of its inherent power can pass such order as may be necessary to do justice between the parties in the circumstances of the case unless there is some specific prohibition in law to pass such an order. In the present case the offer given by late Mst. Atia Begum was approved by the Court on 28th October,1974 and thereby a valuable right was created in her favour. However, Mst. Atia Begum died during the proceedings of the case and before the sale approved in her favour could be finalized by the Administrator appointed by the Court. It has not been contended before me by any of the parties that the right so acquired by late Mst. Atia Begum came to an end with her death and her legal representatives are not entitled to claim that right. In these circumstances I am of the view that the Court has ample power under section 151, C.P.C. To substitute L.Rs, of late Mst.Atia Begum on record so that the order passed by the Court on 28th October, 1974 is fully complied and given effect to. I accordingly overrule the objection raised by the plaintiff and the defendants in the suit and grant the application under section 151, C.P.0 filed by the L.Rs, of the deceased Mst. Atia Begum subject to all just exceptions. I may however, add that as the plaintiff and defendants have denied that the persons who have applied to be joined as L.Rs, of late Mst. Atia Begum are her L.Rs,, the Administrator shall before executing the final sale-deed in their favour shall ask them to produce an appropriate order from a competent Court of law establishing that they are the only legal heirs of late Mst. Atia Begum.
11. ' The two applications are disposed of accordingly.