As the same points of law and facts are involved I intend to dispose of Revisions Nos.4-I of 1989 to 51 of 1989 by this single order.
2. The petitioner is Editor, Publisher and Proprietor of Newspaper `Wecklv Pukkar', Quetta. On direction, of respondent No.2 he had supplied Newspaper 'Weekly Pukkar' Quetta, to various Schools in Province of Baluchistan. For period 1974-1975 and 1975-1976 having not been paid, he approached the respondents for the payment of dues. By letter No.40820/68, dated 14th December, 1976, the respondent No.2 directed for clearance of the dues but of no avail. On 11th May, 1977 he issued notice to the respondents for payment of the dues. Receiving no response from them he filed suit for recovery of the arrears on 12th September, 1978 in the Court of Senior Civil Judge, Quetta. Various objections were raised by the respondents hence under Order 23, Rule 1, C.P.C. The petitioner withdrew the suit with permission of the Court to file a fresh one on 21st December, 1980.
The petitioner filed several suits for the recovery of same amount against the respondents who vehemently resisted the same. Following issues were framed:- (1)Whether the suit is not maintainable in view of preliminary objection No.l of the written statement?
(2)Whether the suit is barred by limitation (3)Whether this Court has no territorial jurisdiction in the matter.
(4)Whether the plaintiff is entitled to the decree prayed for?
(5)Relief.
On the controversial issues the parties led their evidence. Without touching the merits of the cases the learned Senior Civil Judge, Quetta on 30th June, 19&8 dismissed the suits on the ground that they were filed beyond period of limitation. Appeals filed by the petitioner also received the same fate from the hands of learned Additional District Judge, Quetta on 3rd October, 1988. These Revision Petitions are directed against the abovesaid judgments and decree of the Courts of Senior Civil Judge and Additional District Judge, Quetta.
3. In support of the petitions Mr. W.N. Kohli, the learned counsel for the petitioner contended that as the petitioner was allowed to withdraw the suits with permission to file a fresh one, the time would not run against him, besides benefit of section 14 of Limitation Act had to be extended in favour of the petitioner. To appreciate the contentions raised by the learned counsel for the petitioner it would be advantageous to reproduce Order 23, rule 1, C.P.C. It reads as under:- "(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-- (a)that a suit must fail by reason of same formal defect or (b)that there are other sufficient grounds for allowing the plaintiff to institute afresh 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 part 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) he shall be liable for such cuts 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 sub-rule (1) shows that a plaintiff can withdraw his suit at any time without permission of the Court. But under its sub-rule (2) a plaintiff on application can withdraw from suit with permission of the Court to file a fresh .q one. 1
4. It may be observed that when plaintiff withdraws his curt under sub-rule1 he cannot bring a fresh suit on the same, cause of ,action. Reliance is placed on.
(1) PLD 1959 SC 287
(2) PLD 1977 Lah. 103,31.
(3) PLD 190) Lah. 261.
The object of this rule is to prevent plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. The view gets support from AIR 1914 PC 249' AIR 1951 All. 845; AIR ly'_2Na.
84. And AIR 1918 Pat. 452.
5, In permitting to institute a fesh suit the sub-rule (2) seeks to prevent technicalities from defeating justice. The relevant authority is 48 I C 1(X): tl1;wcver for withdrawal of the suit with permission to file a fresh one specific reasons are to be set out. The quotations relied upon are PLD 1966 Kar. PL17 1905 Pesh. 127 When permission is granted in absence of v" ,under mentioned in above clause the order is held to be defective. PLD 1967 Lah. 531; PLD 1962 Lah. 470 and PLD 1957 Lah. 648.
6. In the instant case it seems that the grounds are not set forth in the order dated 21st of December, 1980 by the learned Senior Civil Judge. For convenience sake the order is reproduced as under:- Whatever the case may be the petitioner withdrew his suit with permission to file a fresh .One. It has to be seen whether the contentions raised by the learned counsel for the petitioner in support of his petition are well-founded. It may be noted that the object of the permission to file a fresh suit is that the technicalities of law may not stand in way of plaintiff to defeat ends of justice. But in no case the rule gives protection to plaintiff from running of limitation against him. On the contrary sub-rule (3) categorically puts specific bar. It reads as under:- "In any, fresh suit. Instituted on permission granted under the last preceding rule the plaintiff shall be bound by the law of limitation in the manner as if the first suit had not been instituted."
The proposition has been elaborately discussed in PLD 1959 SC 287 and AIR 1935 All. 381.
However if a first Court had no jurisdiction to entertain the suit and plaint is returned for presentation to .The proper Court, it is not.Withdrawal of the suit under Order' 23, rule 1, C.P.C. And section 14 of Limitation Act operates. In AIR 1940 Sind 125 it has been observed that: "The suit failed for want of jurisdiction in the Court and was on the order of the Court returned for presentation to the proper Court. We think therefore S.14, Limitation Act, applied and the suit was in time."
Herein the admitted position is that the First Court had the jurisdiction over the lis and the subsequent suits have been filed in the same Court: hence there is no jurisdictional defect in the Court. Reverting to facts it may be seen that the cause of action for the recoveries of the dues have been shown to start on 14th December, 1976. The first suit was filed within period of limitation. The subsequent suits have been filed in the year 1980. The period fixed for recovery of arrears is 3 years under Article 52 of Limitation Act. On face of it the claim has been brought by petitioner beyond period of limitation. Time spent in prosecuting the first suit cannot be obviously condoned. My view gets support from AIR 1938 Bom 281 and AIR 1934 All. 688. When this proposition was put to the learned counsel for the petitioner he had no explanation to make but monotonously urged for beneft of section 14 of Limitation Act which does not come to his rescue as petitioner's case indeed does not fulfil the essential condition laid therein.
7. As already observed hereinabove that return of plaint cannot be equated with withdrawal of suit hence section 14 of the Limitation Act has no relevancy at all. This relevant point has been discussed in AIR 1939 Cal. 625 and AIR 1938 Bom. 281. They read as under:-
(1) AIR 1939 Calcutta 625 "It may be pointed out that the plaint here was actually returned to the plaintiff and the Court had definitely terminated the previous suit on the ground that it had .No jurisdiction to entertain it. The order allowing the withdrawal of the suit must therefore, be , deemed to be without jurisdiction and no such order could be passed after the plaint was returned on the ground that the Court had no jurisdiction to entertain it. I agree therefore, with the Courts below in holding that S.14 Limitation Act, is not attracted to the facts of the present case and consequently- the plaintiff's suit must be dismissed as being barred by limitation. The appeal accordingly fails and it is dismissed. There will be no order as to costs in this appeal."
AIR 1938 Bombay 281: "It had also jurisdiction to decide the question raised by the defendants that they were agriculturists that is it had jurisdiction to decide whether it could make a decree and we do not think that its jurisdiction was affected in -any, way by the action of the plaintiff. The order made by it under 0.23 R.1 was an order of a Court which had jurisdiction and this case, therefore, comes under 0.23, R.2, and the plaintiff was bound by the Law of limitation."
There is no cavil on the proposition laid down in the above-said authorities. In such view of the facts the learned trial Court had rightly come to the conclusion that the suits filed by the petitioner were time barred and it seems that there is nothing wrong with the order of appellate Court confirming the same judgments and decrees.
Obviously the suits filed by the petitioner arc time- barred hence I sec no reason to interfere with the decisions of the .Two subordinate Courts in these revision petitions which are dismissed in limine accordingly with no order as to costs.
8.This is the reasoning of my short order dated 28-3-1989.