1. ' SYED HAIDER ALI PIRZADA, J.---This High Court Appeal by Amjad Rashid Khan Malik is directed against the order dated 21-3-1984 passed by the learned Single Judge dismissing Misc. Application No,4103/76 under Order XXXIII Rule 1, C.P.C. Read with section 151, C.P.C. Filed by the appellant and allowing Misc. Application No,5149/78 under Order XXII Rules 1 and 3 read with section 151, C.P.C.
2. Filed by the respondents 3 to 9 alleging to be heirs of the deceased Mst. Atiya Begum.
3. ' The facts leading to the filing of the above appeal are that W/Cdr. Abdul Rashid Malik died intestate on 24-3-1969 leaving behind a son, the appellant, and a widow and one daughter respondents 2 and 3 respectively. The appellant filed suit for administration and accounts of the estate of the deceased Wing Commander Abdul Rashid Khan Malik. During the pendency of the suit the parties filed a compromise application. A preliminary decree .For administration was passed in terms of the compromise application. A preliminary decree was prepared. Para. 2 thereof provides that the administrator shall get the house No,43 F/B, Block 6, P.E.C.H.S. Limited, Karachi surveyed and sold in the open market. Para. 3 provides that the decision of the said administrator regarding the market value of the house shall be final and the parties hereto shall not dispute or question his judgment, finding and disposal of the said house. The administrator invited bids. Mst.
4. Atiya Begum offered the bid of Rs,2,11,000. The said administrator made a reference for approval of the bid of Rs,2,11,000 of Mst. Atiya Begum for the purchase of property known as "Malik House." The bid was accepted by this Court on 28-10-1974.
5. ' The respondents 2 and 3 moved an application under section 151, C.P.C. For setting aside an ex parte order made on 28-10-1974. The other application under Order XXIII Rule 2, C.P.C. Moved by the parties to the suit in which the prayer was that the administrator be directed to mutate and transfer the said Malik House in the name of Mrs. Zubeda Rashid Khan Malik. Both the applications were, however, rejected by Mr. Fakhruddin G. Ebrahim, J. (as he then was). The order passed by the learned Single Judge was challenged before the Hon'ble Supreme Court but without any success.
6. ' During the course of the suit, the appellant filed an application under Order XXIII rule 1 read with section 151, C.P.C. For withdrawal of the suit stating therein that the parties have patched up their differences and the appellant's suit be dismissed with no order as to costs as having been withdrawn unconditionally and the said preliminary decree having become infructuous.
7. ' During the pendency of the above application the present respondents 3 to 9 filed an application under Order XXII rules 1 and 3 read with section 151, C.P.C. For substituting them in place of deceased Atiya Begum.
8. ' The present appellant filed the application announcing his withdrawal from the suit for the reasons mentioned therein and stating that the suit may be dismissed as withdrawn. This application was strongly opposed by the present respondents 3 to 9 whose grievance was that the interest derived by Mst. Atiya Begum in the subject-matter of the suit by reason of the aforesaid sale would be prejudicially affected, if by reason of the plaintiff/appellant's withdrawal at such stage the Court should simply dismiss the suit. It is alleged that she was one who had acquired valuable rights by virtue of agreement of sale during the pendency of the suit and that subsequent withdrawal of the suit by the plaintiff is only a device resortes to in collusion with defendants (present respondents 2 and 3) and thus prejudiced her interests. The learned Single Judge did not think it fit to dismiss the suit itself consequent upon the withdrawal application for the reasons stated by him in his order. In this view of the matter, he dismissed the plaintiffs application.
9. ' With regard to the application filed by the heirs of Mst. Atiya Begum, he observed that provisions of Order XXII, C.P.C. Deal with the application filed either by L.Rs, of plaintiff or the defendant in the suit but this does not mean that the Court is powerless to do hill justice between the parties just because the Code of Civil Procedure does not contain specific provision to deal with a particular situation. He observed that as the plaintiff and defendants have denied the persons who have applied to be joined as L.Rs, of Mst. Atiya Begum, the Administrator shall before final sale-deed in their favour shall ask them to produce an appropriate order from the competent Court of law established that they are the only legal heirs of late Mst. Atiya Begum. The application was accordingly disposed of. Hence the present appeal.
10. ' Mr. Z.U. Ahmed raised the following contentions:-
(1) The learned Single Judge ought to have dismissed the suit when the plaintiff withdrew from it unconditionally under Order XXIII Rule 1, C.P.C. And the defendants on the record did not object to the withdrawal.
(2) Mere agreement does not create rights in Mst. Atiya Begum.
(3) Mst. Atiya Begum and the respondents 3 to 9 have not complied with the provisions of Order XXI Rule 85, C.P.C. Mr. Fazle Ghani, learned counsel for the respondents supported the contentions of Mr. Z.U. Ahmed.
11. ' On the other hand Mr. Khalid Anwar submitted that where a valuable right has, during the course of the suit, accrued in favour of a party, the suit should not be allowed to be withdrawn. Preliminary decree is conclusive decree and can only be set aside in an appeal and it is not open to the plaintiff to withdraw the suit.
12. ' Reverting to the contention of Mr. Z.U. Ahmed that mere agreement does not create rights in Mst.
13. Atiya Begum, it is sufficient to observe that there is no dispute about this proposition that mere agreement does not create rights in the purchaser. However, after taking into consideration all the above facts, we are of the view that the bid of Mst. Atiya Begum was accepted by the Administrator and confirmed by the Court. In that view of the matter, it cannot be said that it was a mere agreement.
14. ' The main contention is that the learned Single Judge ought to have dismissed the suit when the plaintiff withdrew from it unconditionally under Order XXIII Rule 1, C.P.C. And when the defendants on the record did not object to the withdrawal. The question is whether this contention should prevail having regard to the special circumstances of the case. Sub-rule (1) of Rule 1 Order XXIII, C.P.C.
15. Gives the plaintiff option of withdrawal from the suit or abandoning part of his claim at any time after its institution. No permission of the Court is necessary for such a withdrawal. Sub-rule (3) says that the plaintiff who does so 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. In Ram Churn Bysack and another v. Mrs. Ripsimah and others [(1868) 10WR 373)], it was held. That a plaintiff is by the nature of the case free any moment from the time of instituting his suit until that of the decree being made which judicially determines the merits of his claim, to withdraw that claim from the consideration of the Court, and to say that he no longer desires to ask for any decision upon it. And in the event of his doing so, whether the defendant consents thereto or not, the Court is immediately deprived of authority, further to entertain the claim and should then confine itself solely to the question of costs. This decision was considered by Curgenven, J. In V.K. Kunjo Kombi Achan and another v. Ammu (AIR 1932 Mad. 311). The learned Judge observed that such a view is only compatible with the position that the Court has to pass no order regarding the fact of withdrawal and the disposal of the suit by that means and is of opinion that until the Court passes such an order it is not deprived of jurisdiction to order the suit for all purposes.
16. ' In a case reported in AIR 1934 Mad. At page 485, a learned Single Judge of that Court held that in partition suits the power of plaintiff to withdraw has been limited to the extent only that it can be exercised only till a right in the defendant in the continuance of the suit or its determination in a particular way, has been legally created, as for example, by a preliminary decree or a compromise or agreement or award.
17. ' Reliance was placed by the learned Judge on various decisions reported in AIR 1920 Mad. 546, (1905) ILR 29 Bonn. 13 and AIR 1925 Born. 425, In Satya Bhamaya Bias Case (supra) in a suit for partition, a decree had been passed on an agreement and an appeal by the plaintiff was pending when he wanted to withdraw the suit. It was held that it was not open to the plaintiff who had made the concession to annul it by withdrawing from the suit.
18. ' In case reported in AIR 1949 Mad. At page 772, the plaintiff averred that as a direction by metes and bound was not possible the property might be directed to be sold under Partition Act and the proceeds divided. When the suit was taken up for trial, both the parties conceded that the property was incapable of being divided by metes and bounds and that it should be sold under the provisions of the Partition Act. The defendant applied to purchase the property under section 3.
19. Subsequently the plaintiff filed an application alleging that the property was capable of convenient division of metes and bounds, that the statements to the contrary made in the plaint and before the Court were all due to mistake and that proceedings should be amended by his being allowed to withdraw these statements. The plaintiff also prayed incidentally for the appointment of a Commissioner to inspect the property and report as regards the divisibility of the property by metes and bounds into two shares without affecting the value of the other share. A Commissioner was accordingly appointed by the lower Court. The Commissioner reported that the property, as it was, could not be conveniently divided. The Court decided to allow the plaintiff to amend the plaint or withdraw the admission made before the Court. Thereafter the plaintiff applied for leave to withdraw the suit unconditionally but the Court below decided to allow the withdrawal. It was held by the High Court that mere admission and concession made by the plaintiff in the plaint and before the Court, did not give the defendant indefensible right to purchase the share of the plaintiff at a valuation to be fixed by the Court. By withdrawing the suit unconditionally, therefore, it could not be said that the plaintiff would deprive the defendant of any right which had accrued to him under the Act.
20. ' In a case reported in AIR 1963 All. At page 368, an extensive review of the relevant case-law was considered on the question of right of withdrawal of a plaintiff under Order XXIII Rule 1, C.P.C. This suit was for rendition of accounts and for a decree in respect of such sums as may be found due from the defendants as its agent on the basis of such accounts. The defendant resisted the suit on the ground that one of the parties had understood the accounts and a certain sum was found due from the plaintiff to the defendant. After framing the issues, the plaintiff filed an application for withdrawal of the suit under Order XXIII Rule 1, C.P.C. Without seeking leave to file fresh suit on the same cause of action. The defendant opposed the application on the ground that it was not bona fide and, therefore, it should be dismissed and that a decree for a sum found due to him on taking accounts be passed on his paying court-fee. The trial Court, however, allowed the application for withdrawal and dismissed the suit. On revision the High Court held that the plaintiff had an absolute right to withdraw unconditionally under Order XXIII Rule 1, C.P.C. In the absence of a preliminary decree, an award or compromise or any adjudication of the rights of the parties. After reviewing the case law and taking into consideration, the cases where the Court refused to permit the plaintiff to withdraw the suit, Rama Bhadran, J. Pointed out that in all the cases cited in support of the submission that the plaintiff does not have absolute right to withdraw the suit, either a preliminary decree had been passed by the Court or a compromise existed or the suit was in a representative capacity or an award had been made i,e. The basic rights of the parties had been decided. It was, therefore, concluded that in that case since none of these factors existed, the right to withdraw the suit is absolute.
21. ' In a case reported in AIR 1931 All. At page 386, it was held that a preliminary decree is conclusive as regards the Court that passes it and is only subject to alteration by the Appellate Court when an appeal is preferred against it.
22. ' In a case reported in AIR 1934 Mad. At page 485 it was held that a plaintiff 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 an agreement or award.
23. ' In a case reported in PLD 1971 Lah. At page 395, Anwarul Haq, J. (as he then was) held that if plaintiff is not seeking the permission of the Court to institute a fresh suit in respect of the same subject-matter or the cause of action, then he is at liberty to withdraw the suit at any time in terms of sub-rule (1) of Rule 1 of Order XXIII. The Court does not appear, in such circumstances, to have any power to compel the plaintiff to continue the suit.
24. ' In another case reported in PLD 1975 Kar. At page 327, a learned Single Judge of the erstwhile High Court of Sindh and Balochistan, Karachi Bench, held that Order XXIII Rule 1 does not draw any distinction between suit in which interlocutory orders have been passed and the suits in which such orders have not been passed. The right .Of the plaintiffs to withdraw their suits cannot be contained or limited because receivers were appointed in their suits.
25. ' In Sirajuddin v. Mst. Amtul Rauf and 12 others (PLD 1977 Kar. 933), Mr. Zafar Hussain Mirza, J. (now a Judge of Supreme Court) after reviewing all the case-law on the subject, held that "normally the plaintiff who wishes to withdraw the suit cannot be forced by the Court to prosecute the proceedings which he does not wish to continue. In exceptional circumstances, however, the Court has the discretion to refuse the termination of the proceedings in cases where the defendant has acquired valuable rights or in cases where the plaintiff has sued in representative capacity so that the withdrawal of the suit would affect the rights of others, or in cases where the parties arrayed as defendants are also plaintiffs in the proceedings, so that a decree in their favour must necessarily be passed if the suit culminates in judgment."
26. The principles which can be deduced out of the cases aforesaid clearly are (1) the plaintiff under sub-rule (1) of Rule 1 of Order XXIII of the Code has a right to withdraw a suit at any stage; (2) such a right of the plaintiff is limited to the extent that it does not result in defeating a right which has already vested in the defendant; such a right might have become vested in the defendant either on account of a compromise or a concession or a decree or an award or similar circumstances;
(3) that in a partition suit every defendant is virtually in the position of a plaintiff, his claim being founded on a claim similar to that of the plaintiff; (4) that Order XXIII Rule 1, Sub-rule (1) of the Code applies even to a partition suit; subject to the aforesaid limitation; (5) so also in partnership suits and suits for accounts where the- defendants too may be entitled to same relief in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit; (6) similarly in suits for specific performance and administration suits, the withdrawal by the plaintiff should not necessarily lead to the dismissal of the suit because some appropriate reliefs have to be given even in favour of the defendants; (7) in a representative suit the Court need not dismiss the suit in spite of the withdrawal by the plaintiff, but it may add another person as a party in substitution of the plaintiff or transpose a defendant as a plaintiff and direct the continuance of the suit.
27. ' In this background of the law, the point arises as to whether the special circumstances of this case have created any vested right in Mst. Atiya Begum which should justify the refusal of the prayer of the plaintiff to withdraw the suit. It is strenuously contended for the appellant and respondents Nos.2 and 3 that as Mst. Atiya Begum was not actually a party to the suit, she had no right to enforce the agreement of sale and the present respondents 3 to 9 have not to be impleaded as parties to the suit; and therefore the pendency of that application should not be deemed to be a bar to the dismissal of the suit by the Court. It is, however, conceded that if such an application was made by the defendants themselves who are parties on record, the principle of the decision reported in AIR 1925 Born. 425 would be applicable.
28. ' From the facts stated earlier, it would appear that a consent preliminary decree was made on 9- 5-1970 which inter alia provided that the administrator should get house No,43-F/B, Block 6, P.E.C.H.S. Karachi on plot measuring about 1, 253 square yards surveyed and sold in the open market. Ultimately on 28-10-1974 the administrator informed this Court that Mst. Atiya Begum had offered Rs,2,11,000 and he requested that this offer be accepted. This offer was accepted by the learned Single Judge. On 6-11-1974 the defendants, the present respondents 2 and 3, filed an application under section 151, C.P.C. For vacating the ex parte order dated 28-10-1974. It was stated in the said application that the plaintiff also patched up with the defendants and arrived at a compromise and that compromise could only be effected if the defendants succeeded in their application under section 151, C.P.C. Application under section 151, C.P.C. Was dismissed on 31-5- 1976 and the dismissal order was upheld by the Hon'ble Supreme Court. The administrator was directed to complete the sale in favour of Mst. Atiya Begum at the increased price of Rs,2,20,000.
29. It is clear that by the preliminary decree, Mr. Ebrahim Ahmed was appointed as administrator and he was authorised to sell the property, to Mst. Atiya Begum. It has come on record that Mst. Atiya Begum had given a bid for c Rs,2,11,000 which was enhanced to Rs,2,20,000. The sale was confirmed by order dated 31-5-1976.
30. ' In the light of the circumstances aforesaid, in our view, the learned Single Judge has correctly decided to refuse the prayer of the plaintiff to I withdraw the suit.
31. ' This brings us to the next point as to whether it was justified to substitute L.Rs, of late Mst. Atiya Begum on record so that the order dated 28-10-1974 was fully complied with and given effect to?
32. ' Mrs. Z.U. Ahmed and Fazle Ghani Khan urged before us that the respondents 3 to 9 have no locus standi to be impleaded as Mst. Atiya Begum was not a party to the suit. A stranger to the suit though she is a party to the execution of agreement of sale may not be allowed to apply for its enforcement in that suit. It is argued by Mr. Khalid Anwar, learned counsel for the respondents 3 to 9 that though application was put in under Order XXII, Rules 1 and 3, C.P.C., the right to be made a party comes even under a specific provision of the Code viz ' Order XXII Rule 10, C.P.C. He further contended that by virtue of the declaration of a substantive right contained in section 146, C.P.C.
33. Respondents 3 to 9 must be taken to be a person claiming under the parties, by reason of her being a purchaser of Malik House on account of sale confirmed by this Court. If respondents 3 to 9 are assignees of an interest in the subject-matter of the suit from the parties under a sale agreement, the suit may be leave of Court, be continued by or against them under Order XXII, Rule 10, C.P.C.
34. ' Pending a suit on the original side of this Court relating to the estate of Wing Commander Abdul Rashid Khan Malik, a consent preliminary decree was made on 9-5-1970. Mr. Ebrahim Ahmed was appointed as administrator and Malik House was to be sold by the administrator on the directions of the Court.
35. Order XXI Rules 64 to 73 prescribe the procedure relating to sale of immovable property. When the Court makes an order confirming the sale under Order XXI Rule 92, the sale becomes absolute.
36. After the sale becomes absolute under Rule 94, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of the sale, is declared to be the purchaser. The procedure envisaged for sale generally and sale of immovable property under Order XXI is sale by a public auction. Section 65 of the Code of Civil Procedure lays down that where immovable property is sold in execution of decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when it is sold and not from the time when the sale becomes absolute. The provisions under Order XXI Rules 82 to 103 refer to execution of sale only and have no application to sale held by the administrator who enjoys powers of a receiver. In this view, the contention raised by Messrs Z.U. Ahmed and Fazle Ghani has to be rejected.
37. In a case reported in AIR 331, (sic) the Judicial Committee held that once a sale has been effected and third party's interest intervened, there was nothing in Order XXI Rule 2, C.P.C. To suggest that the sale could be disregarded.
38. ' Applying the above principle to the facts of the case in hand, the purchaser thus has substantial right in the property and these rights cannot be taken away or disregarded and the learned Single Judge has tightly allowed the respondents 3 to 9 to be impleaded as parties. Under these circumstances, the learned Single Judge was right in having overruled the objections of the appellant and respondents Nos.1 and 2.
39. ' We are therefore, not persuaded to accept any of the arguments addressed on behalf of the appellant and respondents Nos.1 and 2 against the order of the learned Single Judge.
40. ' For the aforesaid reasons, the appeal is dismissed. However, looking to the circumstances of the case, there will be not order as to costs.