1. Granted
2. This application has been moved by the plaintiff under Order 23, Rule 1, C.P.C. Read with section 151, C.P.C. Praying as under:- The plaintiff, therefore, is withdrawing the suit and the same may be deemed to have been withdrawn and the Hon'ble Court will be pleased to pass an order according, without any right in the defendants to receive notice of this application except claiming costs, if any. Mr. Khalilur Rehman, Advocate, who is present in Court isappearing for defendants Nos.2 to 7 and has vehemently opposed this application.
2. In order to appreciate the submissions of the learned counsel for the parties.It would be proper that the relevant facts be mentioned. This suit was originally filed by the plaintiff against the present defendants Nos. 1 to 5 for the relief of declaration, injunction and damages while defendants Nos. 6 and 7 were subsequently joined as parties to the suit. The plaintiff claims to be tenant of the premises in dispute along with doors and show-windows while the defendants 2 to 7 claim occupation of their respective cabins/patheredars attached to the windows and doors of the said premises. The defendants Nos.2, 3, 4 and 7 have also filed their own suit being Suit No.155 to 158/74 in which suits the temporary injunctions were also 'granted in their favour which accordingly to learned counsel are still in operation. Learned counsel for the defendants has opposed this application on two grounds. Firstly that in the written statement filed by the present defendant No.1, landlady, in suits of the defendants she has admitted them to be her tenants and, therefore, her right has been created in their favour and for this reason the present suit cannot be allowed to be withdrawn as prayed. Secondly, he has taken the plea that this suit is being withdrawn for the reasons mentioned in paragraph I of the application which amounts to granting declaration prayed for by the plaintiff. In support of this contention he has placed reliance on the cases of Sirajuddin v. Mst. Amtul Rauf and 12 others PLD 1977 Kar. 933 and Amjad Rashid Khan Malik and another v. Mrs. Zubeda Rashid Khan and another 1984 CLC 2851. He has also placed reliance on the case reported in AIR 1934 Madras 337. As against this Mr. Z.U. Ahmad, appearing for the plaintiff, has submitted that the four suits filed by the defendants are still pending and that by an earlier order this Court had directed that the said 4 suits be also heard along with the present suit but there being no order of consolidation or amalgamation of the said four suits the same would not be affected by withdrawal of the present suit. He has further submitted that as provided under Order 23, Rule 1, C.P.C. It is right of the plaintiff to withdraw the suit in case he does so unconditionally and even then permission of the Court is not required but only an intimation is to be given. He has further submitted that the defendants in such case can at the most claims costs in the suit.
3. I have considered the submissions of the learned counsel for the parties. The provisions of Order 23, Rule 1, C.P.C. Read as under:- (1)Withdrawal of suit or abandonment of part of claim,--(l) At any time after the institution of a suit the plaintiff may, as against all or any of 10,11M the defendants, withdraw his suit or abandon part of his claim.
4. (2)Where the Court is satisfied.-- (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 part of a, claim.
5. (3)Where theplaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), be 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 it of the claim.
6. (4)Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the other ".
7. From the above provisions it may be seen that it is a right available to the plaintiff that after filing of a suit he may withdraw the same at any stage during the tendency of the suit. The embargo if any is provided in sub-rule (3) which lays down that in such case the plaintiff shall be liable for such costs as the Court may award and shall also be precluded from filing a fresh suit on same cause of action unless such permission has been granted to him under sub-rule (2). A plain reading of these 3 sub-rules of Rule 1, Order 23, C.P.C. Shows that the plaintiff has the right to withdraw the suit unconditionally but in case he wants to bring a fresh suit he has to seek permission from the Court at the time of withdrawal. It also shows that plaintiff can be burdened with the costs of the' suit only. However, this right of plaintiff is subject to a check where rights are created in the suit in favour of the defendants as has been held in the cases cited by the learned counsel for the defendants. In case of Sirajuddin v. Mst. A Amtul Rauf and 12 others (PLD 1977 Kar. 933) Zafar Hussain Mirza, J, as his Lordship then was has held:- "The only question that now falls for determination is whether the plaintiff has the absolute right to terminate the proceedings by unconditionally withdrawing the suit. I have already stated 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".
8. In case of Amjad Rashid Khan Malik v. Mrs. Zubeda Rashid Khan and another, Saeeduzzaman Siddiqui, J. (as his Lordship then was) has observed:- "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 nullity 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.
9. Only be modified, altered or set aside in an appeal by the appellate Court".
10. This judgment is also not applicable to the facts of the present case as it was a suit for partition and administration and the parties to the suit admittedly did have rights to subject matter of the suit. Similarly in the Madras case also it has been held that such permission for unconditional withdrawal cannot be granted in exceptional case such as suit for partition, accounts etc. As against this Mr. Z.U. Ahmad, Advocate, has placed reliance on the case of Malik Mumtaz Ali v.
11. Pakistan through Secretary, Refugees and Works, Government of Pakistan Rawalpindi and 3 others PLI) 1971 Lahore 395. In this case it was held by the then Chief Justice of Lahore High Court as under:- "It will be seen that if the 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 mentioned above. The Court does not appear, in such circumstances, to have any power to compel the plaintiff to continue the suit (see Sm. Saras Wati Bala Samanta and others v. Surabala Dassi and others AIR 1957 Cal. 57, Muralidhar Marwari v. Latif Mohan Sahu and others AIR 1962 Qrissa 86 and Karim Gul and another v. Shahzad Gul and another PLD 1968 Pesh.
134. In view of these legal provisions, I cannot see how I can refuse permission to the petitioner to withdraw, or rather how I can compel him to continue the present proceedings against his own wishes and interest".
12. Reliance may also be placed on the following cases:- (1)Manager, Muslim Commercial Bank, Chhattar Domel Branch, Muzaffarabad v. Maqsood Khan and 7 others PLD 1986 AJ&K 215.
13. (2)Muhammad Rahim. v. Bashir Khan & 3 others PLD 1983 Pesh. 115.
14. (3)Sheikh Muhammad Ramzan v. Muhammad Asghar Ali PLD 1984 Lah. 230.
15. In the above cases also it was held that withdrawal of the suit under Order 23, rule 1(1), Cr.P.C. Is the right of the plaintiff which he can exercise at any stage after the institution of the suit.
16. From the perusal of the above case law I am of the view that under provisions of Order 23, rule 1(1), C.P.C. The plaintiff is within his rights to withdraw the suit where no permission is sought to bring the fresh suit with regard to same subject-matter or the same cause of action. As observed by the then Chief Justice of Lahore High Court, there can be no reasons to compel an unwilling plaintiff to pursue his suit against his wishes and will. Of course this will not apply to the case where the independent rights, enforceable in law, have been created in favour of the other parties such as in suit for partition', accounts or where a preliminary decree is passed or other rights created by orders passed in suit. In the present suit it is an admitted position that the four suits filed by the present plaintiff are already pending in the Court which will proceed on their own merits. Under these circumstances I do not see as to how rights of the defendants, if any, would be affected by withdrawal of the present suit. Accordingly I allow this application and will allow the costs to the defendants as the defendants have faced rigour of litigation in this suit for a period of about 18 years. Consequently the suit is dismissed as withdrawn with costs.
17. AA./H-295/K