1. This civil revision petition under section 115, C.P.C. Has been preferred against the judgment and decree dated 30-10-1996 and 26-5-1996 respectively passed by the learned Additional District Judge-III, Quetta and Civil Judge-I, Quetta whereby the appeal and the suit filed by the petitioners has been dismissed.
2. The brief facts of the case are that the petitioner on 29-1-1991, filed a civil suit for declaration injunction and partition of movable and immovable properties against the respondent No. l Mst.
2. Noor Bibi daughter of late Muhammad Noor, Mst. Bus Bibi and Tehsildar, Quetta on the ground that the petitioners are entitled to their respective shares on the basis of succession. The respondent No. l who was sued as 'Noor Bibi' and defendant No. l in the said suit filed their joint written statement on 13-5-1991 before the learned Court of Civil Judge-II, Quetta. It is pertinent to point out that the suit was originally filed in the Court of District Judge, Quetta and the same was sent to the Court of the learned Civil Judge-II, Quetta for disposal.
3. "(1) Mst. Bibi Gul d/o Haji Noor Muhammad case Kakar resident of Killi Kotwal, Quetta.
(2) Sardar Muhammad son of Dad Muhammad case Kakar resident of Killi Sheikhan Quetta.
4. Plaintiffs. versus
(1) Mst. Bus Bibi widow of
(2) Mst. Noor Bibi daughter of late Muhammad Noor residents of Khudaidad Road, Quetta.
(3) Tehsildar, Quetta.Defendants.
5. Suit for Declaration Injunction and Partition.
6. Haji Noor Muhammad Muhammad Noor Mst. Bibi Gul Mst. Saadato Bibi Sardar Muhammad Plaintiff 2 Abdul Rehman Mst. Bus Bibi (wife) Defendant No. l Noor Bibi (daughter) Defendant No.2"
3. The detail of the suit property and the reliefs prayed for in the suit is also reproduced hereunder:- -- "(i) Khewat No.1 Khatooni No.1 Khasra Nos.100/102/114/115/117 consisting of five qitas and (Seven Shabana roz two pass) measuring 21 rods 33 poles situated in Mohal Karez Atta Muhammad Mouza Sirki Tappa Saddar District and Tehsil Quetta, (ii)Khewat No.22 Khatooni W`29'Khasra Nos.144/145/146 consisting of three qitas and (eleven shabana Roz Burmajat) measuring 8 rods 22 poles situated in What Chakal Muhammad Murad Mouza Sirki Tappa Saddar kansi District and Tehsil Quetta.
(iii) Khewat No. l Khatooni Nol Khasra Nos.17/11/9/7/99 measuring 34 rods 18/3-4 poles situated in Karez Atta Muhammad.
(iv) Khatooni Nos.46/53 to 55 Shamilat consisting of 10 qitas measuring 12 rods 20 poles situated in Mohat Chukal Muhammad Murad.
7. (v)One Bungalow situated at Khudaidad road outside Qila Kansi, Quetta.
(vi) One car.
(vii) One Rifle.
(viii) One shot gun.
(A) Declaring that the plaintiffs are owners to the extent of 1/2 share of the property left by their ancestor Haji Noor Muhammad described in para No.4.
(B) Declaring the mutation entries fraudulently made in the .Name of Muhammad Noor, Abdul Rehman and defendants Nos. l and 2 behind the back of plaintiffs have no legal effect and are liable to be cancelled.
(C) Directing defendants No.3 to enter the property in dispute in the name of plaintiffs to the extent 1/2 Share.
(D) Restraining the defendants from disposing of property till the partition.
(E) Partitioning the property in dispute between the parties. "
8. On 22-5-1991 the suit was disposed of as withdrawn by the petitioners/plaintiffs on their application submitted before the learned trial Court and the thumb impression of the petitioners were also obtained by the learned trial Court on the margin of the order passed by the learned trial Court in acknowledgement of the request seeking for withdrawal of the suit. The order of the learned-trial Court dated 22-5-1995 is reproduced hereunder: The petitioners on 27-5-1992 filed second civil suit for declaration, injunction and partition against the respondent No. 1, the predecessor-in-interest of the respondents Nos.2-A to 2-F, Naseerud Din and the Tehsildar, Quetta concerning the properties, the subject-matter of the previously instituted suit on the basis of succession as claimed in the aforesaid earlier suit and claimed the following reliefs in the suit:--- "(a) That the plaintiffs are owners to the extent of 1 /2 share in the property left by their ancestor Haji Noor Muhammad described in para No.4.
(b) Declaring that the mutation entries fraudulently made in the name of Muhammad Noor, Abdul Rehman, Mst. Bus Bibi and defendant No.1 behind the back of plaintiffs have no legal effect and are liable to be cancelled.
(c) Directing defendant No.4 to enter the property in dispute in the name of plaintiffs to the extent of their half share.
(d) Restraining the defendant from disposing of property till the partition.
(e) Declaring that all the sale-deeds and registration of property in dispute done by defendant No.1 and her mother be declared illegal and cancelled.
(f) Cessation of the banks account of defendant No. l till the final decision of the Court.
(g) Partitioning of the property in dispute between the parties.
(h) Cost of the suit may also be awarded."
9. The subsequently instituted suit was filed in the Court of District Judge, Quetta which was sent to the file of the learned Civil Judge-III for disposal. This suit was registered with the learned Court of Civil Judge-III Quetta as Civil Suit No. 17 of 1992.
10. The respondents Nos.3 and 4 on their application under Order 1, Rule 10, C.P.C. Were allowed to be impleaded as defendants in the suit subsequently instituted vide order dated 16-3-1995 passed by the learned trial Court and on 4-4-1993 the petitioners filed the amended plaint by impleading the respondents Nos.3 and 4 as defendants in the suit. One Gul Muhammad son of Dad Muhammad (the brother of the petitioner No.2) submitted application on 14-4-1994 before the learned trial Court that he be impleaded in the suit as plaintiff and this application was not contested by the parties to suit, therefore, the learned trial Court vide order dated 8-5-1994 granted the application of the Intervenor to be impleaded as plaintiff and the amended suit (impleading the intervenor as plaintiff No.3) filed in the Court on 16-6-1994. On 11-8-1994 the plaintiff No.3 Gul Muhammad filed an application for withdrawal of the suit as against the defendants for being not interested to prosecute the cause against them. This application was not contested by the parties to the suit hence the Court vide its order dated 18-8-1994 allowed the application and his name was accordingly deleted from the title of the plaint.
11. The defendants/respondents Nos. l to 4 excepting the respondent No.5 who was proceeded ex parte filed their written statement on 1-7-4-1993 contesting the suit on merits besides certain legal objections with regard to the maintainability and competence of the subsequently instituted suit were taken. The learned trial Court on 22-12-1993 framed the following issues out' of the pleadings of the parties: Issues.
(1) Whether the court-fee paid is deficient?
(2) Whether the suit on the same subject-matter has been withdrawn without permission to file fresh, as such the suit is not maintainable?
(3) Whether the suit is barred by time?
(4) Whether the plaint is liable to be dismissed in view of P.O. 'E' of the written statement?
(5) Whether the suit suffers from misjoinder of the parties?
(6) Whether the disputed property is the ancestral property of Muhammad Noor?
(7) Whether the property mutated in the name of the defendant No. l and her mother was the result of framed and mis-presentation?
(8) Whether the plaintiffs are entitled in the share of property of late Noor Muhammad?
(9) Whether the brother of the plaintiff No. l has paid the due share of his sister?
(10) Relief?
12. It is noteworthy to mention that on 2-3-1994 an application under Order XIV, Rule 2 read with Order XV, Rule 2 was submitted by the contesting defendants before the learned trial Court praying that legal issues may be decided in the first instance as the suit can be disposed of on such issues without recording evidence, this application was contested by the petitioners by means of rejoinder filed by them. The respondent No.3 and the contesting respondents vide applications respectively filed on 11-4-1993 and 28-10-1994 prayed that the petitioners be directed to make payment of the required court-fee on the plaint in accordance with the value of the subject matter of the suit.
13. The petitioners during this period filed an application in the Court of District Judge, Quetta for transfer of the suit to the Court of Senior Civil Judge. Quetta on the ground that similar suit between the parties is pending in the Court of Senior Civil Judge, Quetta. ' The respondents did not object to the transfer of the suit, accordingly vide order dated 18-9-1994 this suit was transferred to the Court of Senior Civil Judge, Quetta and registered with the transferee Court as Civil Suit No. 146 of 1995.
14. The application dated 11-4-1993 filed by the respondent No.3 seeking directions of the Court be made to the petitioners for payment of the required court-fee and the application filed under Order VII, Rule 11, C.P.C. Came up for hearing before the learned trial Court and the plaintiffs/petitioners offered to make payment of the court-fee in accordance with value of the subject matter of the suit as and when so directed by the Court, therefore, the learned trial Court by means of order dated 12-6-1993 disposed of the application in terms of the undertaking given for payment of court-fees and dismissed the application of the respondents filed under Order VII, Rule I1, C.P.C. The petitioners had also filed an application under Order XXIII, Rule 1, C.P.C. For withdrawal of the suit with permission to file a fresh suit, which was also dismissed by the learned trial Court on 23-11-1993.
15. Two witnesses of the plaintiffs/petitioners were examined before the learned trial Court i.e. Civil Judge-III, Quetta whereas; the third witness was examined before the learned transferee Court on 22-5-1995. On 24-5-1995 the respondents again submitted application before the learned Senior Civil Judge, Quetta praying that the legal issues framed by the Court be decided first instead of proceeding with case on merits. Consequently the respondents Nos. l, 3 and 4 challenged the proceedings of the suit being commenced on merits without deciding the crucial legal issues by way of civil revision petition filed before the learned District Judge, Quetta which was sent to the Court of learned Additional District Judge-III, Quetta for disposal being Civil Revision No. 10 of 1995.
16. The learned Additional District Judge-III Quetta vide judgment dated 6-7-1995 allowed the revision petition and dismissed the suit of the petitioner, on, the ground that the subsequent suit was barred under Order XXIII, Rule 1(3), C.P.C. As the petitioners/plaintiffs were precluded to file a fresh suit on account of the earlier suit on the subject-matter having been withdrawn by them without seeking permission to file a fresh suit and on the ground of non---0payment of the requisite court- fee on the plaint despite order of the trial Court dated 12-6-1993 passed on the subject.
17. The petitioners/plaintiffs challenged the judgment and decree passed by the learned Additional District Judge-III, Quetta by filing Constitutional Petition No.234 of 1995. Before this Court. This Court vide judgment dated 5-10-1995 set aside the impugned judgment with the consent of the learned counsel for the parties in view of the factual position of the case about the non disposal of the application filed by the respondents seeking for the decision of the legal issues prior to the recording of evidence on the other issues and not taken due notice of by the learned Revisional Court; consequently vide judgment dated 5-10-1995 passed in Civil Petition No.234 of 1995 the case was remanded to the learned trial Court with the directions to pass appropriate orders on the application dated 2-3-1994 filed by the respondents seeking for disposal of the legal issues after providing opportunity to parties for hearing and on the objections of the learned counsel for the respondents it was observed in the said order that the trial Court to dispose of the question of the payment of the court-fee as well on the application of the respondents if not earlier filed.
18. On remand of the case the learned trial Court vide its order dated 28-11-19.95 observed that keeping in view the contention of the learned counsel for the parties that in absence of evidence produced by the parties on the point the valuation of the suit property cannot be assessed, however; fixed the case for further proceedings on the legal objection i.e. Issue No.2 for 12-12-1995.
19. The learned trial Court heard the learned counsel for the patties on the date fixed with regard to the review application submitted by the defendants Nos. l to 3 against order dated 28-11-1995 passed by the trial Court observing that the question of payment of court-fee for want of evidence so far available on the record of the case cannot be disposed of and by means of order dated 31- 12-1995 the learned Court dismissed the review application and fixed the case for arguments on Issue No.2. After hearing the learned counsel for the parties vide order dated 26-5-1995 the learned Senior Civil Judge, Quetta dismissed the suit of the petitioners on the ground that the earlier suit on the same subject-matter was since been withdrawn by the petitioners simpliciter, therefore, the suit is hit under sub-rule (3) of Rule (1) of Order XXIII, C.P.C.
20. The petitioners being dissatisfied with the judgment and decree of the dismissal of the suit filed appeal in the Court of District Judge, Quetta which was sent to the file of the learned Additional District Judge-III, Quetta (registered as Civil Appeal No.55 of 1996). The learned Additional District Judge-III, Quetta by means of its judgment and decree dated 30-10-1996 dismissed the appeal.
21. The petitioners being aggrieved of both the decrees passed on 26-5-1995 and 30-10-1996 respectively by the learned Senior Civil Judge and Additional District Judge-III, Quetta assailed the decrees 'by filing revision petition before this Court, with the prayer to set aside the impugned orders. At the very outset of the arguments being advanced by the learned counsel for the petitioners before this Court on 4-4-1997 it was noticed that the minor respondents Nos.2-C to 2-F have not been sued through any person (the legal heirs of the deceased defendant No.2) in this revision petition, so the learned counsel conceded to the defect of the improperly constituted revision petition and submitted to file an application in this behalf, accordingly the hearing was adjourned for the purpose. Through Civil Miscellaneous Application No.541 of 1997 it was prayed that the respondent No.2-A in the petition be appointed as guardian ad item of the minor respondents. The application was allowed by this Court vide order dated 25-4-1997.
22. The learned counsel for the parties have been heard at length in support of their respective contentions on 2-5-1997. The learned counsel for the petitioners contended that the earlier suit was withdrawn by the petitioners on account of the fact that the defendants in the said suit had assured and expressed their willingness to surrender the suit property to the extent of the petitioners entitlement in their favour and according to the learned counsel, the petitioners believed honestly the representations so made to them to be correct and withdrew from their suit unconditionally but subsequent to the withdrawal of the suit, the defendants in the said suit did not honour their commitment and refused to give their due share in the suit property. According to the learned counsel the subsequent suit was filed against the respondent No.1 (one of the defendants in the earlier suit) and against Wali Jan the predecessor-in-interest of the respondents Nos.2-A to 2-F and against the respondent No.5 who in collusion with the respondent No. l managed for the withdrawal of the suit, therefore, they were impleaded in the suit. The learned counsel for the petitioners thus contended that the cause of action for filing the subsequent suit is different and distinct to that contained in the earlier suit, therefore, the withdrawal of the earlier suit does not affect the maintainability and competence of the subsequent suit, the learned counsel further contended that the petitioners have been fraudulently deprived to inherit the property to which they are entitled under the law and relied on a reported judgment of Hon'ble Supreme Court i.e. PLD 1990 SC 1.
23. On the other hand the learned counsel for the respondents Nos. l to 4 submitted that' since the earlier suit has been admittedly withdrawn by the petitioners without the permission of the Court to file fresh suit on the same subject matter, therefore, the suit on the same subject matter subsequently instituted is barred under Order XXIII, Rule 1, sub-Rule (3), C.P.C. The learned counsel in support of his contention referred and read out, comparatively, the averments of both the suits during arguments and thus submitted that except to the extent of the mention of the reference of the earlier suit, its withdrawal due to the alleged satisfaction and promise extended and made by the defendants to hand over the claimed heritable share to the petitioners in the subsequent plaint, both the suits contain the same averments, therefore, maintained that the suit 'subsequently instituted has rightly been dismissed by the trial Court and duly upheld by the learned appellate Court which is not open to any exception in the exercise of revisional jurisdiction under section 115 of C.P.C. The learned counsel added that that except to the extent of the respondent No.1, the other private respondents have been impleaded in the suit just to alter the complexion of the suit to get rid of the bar in instituting the subsequent suit on the same subject matter against whom no relief even has been claimed in the subsequent suit which, therefore, will not hinder the application of sub-rule (3) of Rule (1) of Order XXIII, C.P.C. And relied upon the judgments reported in law journals i.e. (i) Mst. Mehrunnisa v. Karachi Cantonment Board 1990 CLC 1334, (ii) Feroz Khan and 4 others v.
24. Zaman A.I and others 1993 CLC 1478, (-iii) Mir Zaman v. Mst. Begum Jan PLD 1983 Pesh. 100, (iv)
25. Messers Artisans Craftsman, Rehabilitation Society v. Mst. Asif Jehan Begum and 10 others 1990 MLD 1702 and (v) Maula Bakhsh v. Muhammad Zahid PLD 1990 SC 596.
26. While going through the record of the case it transpired that the name of the respondent No. l even does not appear in the title of earlier suit and this aspect was not clarified during the address made by either of the learned counsel nor even noticed by the Court, therefore, to clarify if the respondent No. l (Khor Bibi) is the only daughter of late Muhammad Noor or otherwise, notices were issued to the learned counsel for the parties for 15-5-1995. On the date so fixed the learned counsel for the private respondents appeared and submitted that the respondent No. l is the only daughter of late Muhammad Noor who had been sued as defendant in the earlier suit besides her mother Mst. Bus Bibi but her name in the title of the previous suit was incorrectly mentioned as Noor Bibi and that Khor Bibi and Noor Bibi is one and the same person. The learned counsel for the contesting respondents for the due verification of his submission in this behalf submitted in writing that the respondent No. l and Mst. Noor Bibi is the one and same person whose correct name is Khor Bibi and this written clarification has been signed by both the learned counsel for the parties.
27. The contentions of the learned counsel for the petitioners are not sound on account of the fact that on the same subject-matter the petitioners filed suit against the respondent No. 1, her mother (since deceased) and the Tehsildar Quetta and withdrew from her suit simpliciter without seeking permission to file fresh suit on the same subject-matter. The contention of the petitioners' counsel that the suit subsequently filed has been based on altogether a new and distinct cause of action as the petitioners have been defrauded and misled by the defendants in the previous suit and by the predecessor-in-interest of the respondents Nos.2-A to 2-F and respondent No.5 who as such have impleaded as defendants in the subsequent suit. The averments of the subsequent suit go contra to the contention so raised on "behalf of the petitioners. It is not the case of the petitioners that the suit earlier instituted be declared by the Court to have been got withdrawn by the respondents by playing fraud through false promise and misrepresentation; rather the same reliefs have been sought for as in the earlier suit on the basis of the right of inheritance in the suit property (the subject-matter of the previous suit). The cause of action for filing the subsequent suit as constituted in para. No.8 of the plaint is the same as given in the earlier suit, inasmuch as; no relief as against the newly added defendants in the second suit with regard to the attributed complained act has been sought for, which nullifies the contentions so raised by the learned counsel.
28. The cited authority is not relevant for the proposition in hand, therefore, needs no discussion on the point.
29. The addition of or impleading of new defendants in the subsequent suit as in the instant case by itself without seeking any relief against such defendants/respondents shall not render the suit as maintainable and competent even against the new defendants.
30. The provisions of Order XXIII, Rule (1), sub-rule (3), C.P.C. Create a complete bar to a subsequent suit if instituted on the same subject-matter and between the same parties or their legal representatives or by or against person litigating under the same title, on which an earlier suit has been withdrawn simpliciter without seeking permission of the Court for filing fresh suit on the same subject-matter. Impleading of new defendants to addition to the defendants of the earlier suit without seeking relief against such a new party shall not ipso facto render the second suit on the same subject-matter as maintainable nor by such an act the provisions of Order XXIII, Rule 1, sub- rule (3) could become redundant or defeated.
31. Since the previous suit on the same subject matter has been withdrawn without seeking permission to file a fresh suit on the same subject-matter, therefore, as above discussed the 2nd suit was not competent nor maintainable in view of sub-rule-(3) of Rule 1 Order XXIII, C.P.C.
32. The case-law cited by the learned counsel for the contesting respondents i.e. 1990 CLC 1334,'1993 CLC 1478, PLD 1983 Pesh. 100, 1990 M.LD 1702 and PLD 1990 SC 596 is relied upon on the subject.
33. The stated different and distinct cause of action for impleading the new defendants in the suit besides the defendant in the previous suit on the same subject-matter and having claimed the same relief as in the earlier suit will not change the complexion, nature and the subject-matter of the second suit to make it as the suit competent under the law.
34. For the foregoing reasons the impugned judgments and decrees are not open to any exception which may call for any interference in the exercise of revisional jurisdiction by this Court; accordingly the revision petition being meritless is dismissed with costs.