' The petition is addressed against the order of the learned Sub-Judge, Muzaffarabad, passed on March 31, 1984, whereby permission to withdraw the suit, was declined.
2. The suit was instituted by Manager, Muslim Commercial Bank, Chhattar Domel Branch, Muzaffarabad, for recovery of Rs, 10,927 along-with interest, against Sardar Khan. It was averred that the amount was advanced as loan to Sardar Khan with the promise of its repayment along- with interest, The suit was instituted on January 24, 1983. Process was issued to the defendant and it was reported by the Process-Server that the defendant could not be found in his residence as he had gone to Abbottabad for medical treatment. Sardar Khan defendant, died on May 8, 1983 in Muzaffarabad City. Asif Khan, his son, moved an application in the Court on August 24, 1983 for dismissal of the suit by virtue of its abatement in the light of provisions of Order XXII, rule 4 of the Code of Civil Procedure. Three days earlier, i. e. On August 21, 1983, plaintiff-petitioner moved an application for permission to withdraw the suit in order to institute a fresh suit against the legal heirs of Sardar Khan deceased. In para. 2 of the application, it was averred that Sardar Khan defendant had died and fresh suit was to be instituted against his legal heirs. In para. 3, it was stated that there was an inherent defect in the pleadings of the plaintiff on account of which the suit was likely to be dismissed. It was prayed that in view of the aforesaid position, the suit may be allowed to be withdrawn. This application was opposed by Asif Khan through his objections filed on January 25, 1984. The trial Court refused to allow the withdrawal of the suit as in its opinion, the suit had abated on the death of Sardar Khan and in absence of application to implead his legal representatives within stipulated period, it was not in the interest of justice to allow the application.
This order has been challenged in the present petition.
3. Mr. M. H. Gilani, the learned counsel for the petitioner contended that the plaintiff-petitioner was vested with a right to withdraw the suit for bringing a fresh suit at any stage and the trial Court fell in error to decline its permission. The contention was opposed by Mr. Nazir Ahmad Wani who represents the legal heirs of the deceased-defendant.
4. Rule 1 of Order XXIII, C.P.C. Empowers a plaintiff to withdraw his suit or abandon part of his claim, at any stage, after the institution of the suit. Sub-rule (2) contemplates that where Court is satisfied :--
(1) that the suit must fail by reasons of some formal defects ;
(ii) that there were other sufficient grounds for allowing plaintiff to institute a fresh suit for the subject-matter of the suit or part of a claim, it was vested with jurisdiction to grant permission to plaintiff to withdraw from such suit or abandon part of the claim with liberty to institute a fresh suit in respect of such subject-matter or such part of a claim. Sub-rule (I) of rule, of Order XXIII authorises a plaintiff to withdraw his or abandon part of his claim, at any stage after the institution of a suit. It imposes no restriction on plaintiff to withdraw from the suit or part of the claim. Thus, under sub-rule (1), plaintiff was free to retire from the suit or part of the claim, according to his own convenience and suitability. Sub-rule (2), on the other hand, applied to a case where the suit or part of the claim was desired to be withdrawn in order to bring a fresh suit by removal of formal defects in the pleadings. But in order to avail the concession provided under sub-rule (2), it was a condition precedent that the Court in order to grant such concession, must satisfy that the suit was likely to fail due to some formal defects or that there were sufficient grounds in order to allow the plaintiff to bring a fresh suit. It is relevant to state that in both the cases, under sub-rules (1) and (2), a suit or part of the claim alive at the time, was likely to be withdrawn and not a suit or part of it which by virtue of abatement or otherwise had come to an end and required only formal order of the Court to that effect.
5. The proposition under consideration reveals that Sardar Khan defendant died on May 8, 1983. The suit, therefore, automatically abated with the death of the defendant. As the fact of death of defendant was not brought to the notice of the Court, the cause remained pending on its file as the abatement, despite requiring no formal announcement, was yet to be declared by the Court on acquisition of knowledge of death of the defendant. In o her words, at the time of moving of application for withdrawal of the suit, the suit had already abated and strictly speaking, it was not a cause alive on the file of the trial Court at the relevant time. On thi premises, the application was moved to withdraw an already abated suit. Order XXIV, rule 1 does not contemplate such a situation.
6. The suit necessarily abated on the death of the defendant. The plaintiff failed to move the Court for impleading legal heirs of the deceased defendant within statutory period of 90 days. In addition to that, another remedy to set aside the abatement, was equally ignored by the plaintiff. Instead of availing the remedy of impleading legal heirs by seeking setting aside of abatement, the plaintiff chose to withdraw the suit, in order to bring a fresh suit against the legal heirs of the deceased- defendant. As at the relevant time, on account of abatement of the suit, a right had accrued to the legal heirs of the deceased-defendant, permission was rightly denied to the plaintiff. As a matter of fact, plaintiff strived to defeat the right accrued to the legal heirs of the defendant by seeking permission to withdraw the suit, in order to bring a fresh suit. In my opinion, plaintiff who had lost cause of action against the defendant on account of his death and subsequently. Against the legal heirs. By negligence to implead them within statutory period, including his failure to avail the remedy of setting aside of abatement, put an end to the matter. A second suit was not permissible under law in that background of the case. In a very close state of circumstances like the situation under consideration, in Janki Misir's case (1) where during the pendency of appeal against the order of dismissal of the suit for possession of property, one of the defendants died whose legal heirs were not brought on record within time and on request of the plaintiff-appellant, permission for withdrawal of the suit, in order to bring a fresh
(1) AIR. 1935 All. 853 suit, was accorded, it was held that the representatives of deceased-defendant who had already acquired the vested right, could not be affected by the order of the Court, passed under Order XXIII, rule 1, C. P. C. The relevant observation is reproduced :- "Where an order has been passed under Order XXIII, rule 1 affecting the valuable right acquired by persons who have not been made parties to that proceeding, the order is not binding on those persons and has not the effect of depriving them of that valuable right.
' A suit was dismissed against all defendants and pending the appeal filed by the plaintiff, one of the defendants died and the appeal as against his representatives was allowed to abate. The appellant then applied to withdraw the suit under Order XXIII and permission was given with the result that another suit was filed.
' Held : that the representative of the deceased-defendant could not be affected by the order passed under Order XXIII, rule 1, as they were not parties to it and that the decree passed in the original Suit WAS binding on appellant as against them.
The opinion recorded by Mr. Justice Kendall, J. Provides a guideline for the settlement of controversy. Here as the suit was not revived in due course of law, nothing was left to withdraw in order to bring a fresh C cause.
7. The other aspect of the proposition equally supports the finding of the trial Court. This is so as sub-rule (2) of rule 1 of Order XXIII of the Code reflects that permission to withdraw the suit, in order to bring a fresh suit, is given on the satisfaction
(a) that the suit due to formal defects was likely to fail ; or
(b) that there were other sufficient grounds to give permission for bringing a fresh suit.
' In present case, plaintiff-petitioner moved the Court for permission to withdraw the suit, in order to bring a fresh suit as in his view, his pleadings suffered from some inherent defects, likely to result in failure of his suit reading of the application and pleadings of the plaintiff does not show such defect as claimed by the plaintiff in his application. The learned counsel for the petitioner was unable to point out any formal defect in the plaint likely to fail his suit. In absence of formal defects as alleged by the plaintiff-petitioner, it was not reasonable to accede to his request. Next, the plaintiff was equally unable to satisfy that the other sufficient grounds were available from the record to support the request for bringing a fresh suit. As a matter of fact, none of the grounds was brought to the notice of even this Court. The requisite conditions listed under sub-rule (2), are, therefore, not found present in the case. In absence of necessary conditions, law does not permit the Court to allow withdrawal of suit, is order to bring a fresh suit. As the plaintiff was unable to satisfy that there was formal defect in the pleadings or that other sufficient grounds were available to justify the request, under law plaintiff was not clothed with a right to seek permission for withdrawal of the suit, in order to bring a fresh suit, against the legal heirs of the deceased- defendant. There is no for in this revision petition. It is, therefore, dismissed with costs.