This revision petition calls in question the judgment and order of the learned District Judge Dera Ismail Khan dated 9-2-1995 vide which application of the plaintiff/respondent No. l herein for withdrawal of suit with permission to file a fresh suit was accepted and the judgment and decree dated 18-9-1989 of the learned Civil Judge Dera Ismail Khan was set aside.
2. Ehsanullah Khan, respondent No. l herein, had sought a declaration to the effect that he is owner in possession of the property fully described in the heading of the .Plaint and that the defendants had no concern whatsoever with the same. It was averred that sale mutation No.510 attested on 28-10-1983 on behalf of A.I Muhammad son of Ramzan through petitioner herein in favour of respondent No.1 was fake, artificial and fabricated. It was also averred that the general power of attorney in favour of respondent No.3 is also absolutely fake and fictitious. Prayer for permanent injunction restraining the said respondent No.3 from claiming ownership of the said property and correction of Revenue Record was also made. Ehsanullah Khan, respondent No. l herein, also claimed that he is the general attorney of the original owner named A.I Muhammad son of Ratnzan.
3. Written statements in the suit were filed by the respondents on 29-7-1986 wherein a preliminary objection regarding non-joinder of necessary party of said A.I Muhammad was raised due to which dismissal of the suit was claimed. After framing issues and recording evidence of the parties pro and contra, the suit was dismissed vide judgment and decree dated 18-9-1989. The said order was challenged in appeal by Ehsanullah Khan, respondent No. 1, before the learned District Judge and during its pendency an application for amendment of plaint was filed on 1-3-1970 there which was referred to the learned Additional District Judge Dera Ismail Khan who in turn vide his order dated 1-3-1993 accepted the said application and allowed the required amendment in the plaint. A revision petition filed in this Court thereagainst was accepted on 27-10-1994 and remanded the case to the District Judge Dera Ismail Khan for decision afresh. Thereafter, on 29-1-1995, respondent No. l submitted an application before the learned District Judge for withdrawal of the suit with a permission to file a fresh one on the grounds of some legal and formal defects in the plaint. The said application was allowed on 9-2-1995 and respondent No. l was permitted to withdraw the suit with permission to file a fresh one after removing the requisite formal and legal defects in the plaint. Hence the instant revision petition against the said order dated 9-2-1995 of the lower appellate Court.
4. Arguments of both the parties heard at length and record of the was scrutinized anxiously.
5. It was argued on behalf of the petitioner that in the written statement filed by the petitioner in the year 1986 it was specifically mentioned that the suit was bad for non joinder of necessary party, i.e. A.I Muhammad, but even then respondent No. l had remained mum and contested the suit which is a material irregularity not cure-able under Order 23., Rule 1, C.P.C. So as to permit to withdraw the suit with permission to file another one. He argued that no doubt under the said Order 23, Rule 1, C.P.C., no time limit is given and the plaintiff is at liberty to withdraw his suit at any time, but the basic requirements for satisfaction of the Court are that there must be some formal defects and that there are other sufficient grounds for allowing the plaintiff to institute a fresh one on the same subject-matter on a part thereof.
6. In reply, learned counsel for respondent No. l contended that the grounds which prevailed with the learned District Judge in allowing permission to withdraw the suit and to file a fresh one were sufficient for the purpose and hence the impugned order is not open to any further exception.
7. After considering the arguments of the learned counsel for the parties and scanning the record, I am of the view that this revision petition merits acceptance. It would be advantageous to reproduce Order 23, Rule 1, C.P.C. Which reads as under:- 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 fall by reason of some formal defect, or
(b) that there are other sufficient ground for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or a part of claim, it may, on such terms as it thinks fit, grant 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 on 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 to 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."
8. From bare reading of the aforesaid provision of law it is crystal clear that the object of the law is not to empower the plaintiff who has not filed his suit with due care and diligence and after coming across the weakness of his cause at any stage to withdraw the suit on a ground which existed from beginning and even had been pointed out by the defendant but no heed was paid to the same. He remained silent over it and uptill the time when the case was remanded to the District Judge for decision afresh when at the verge of its conclusion there, he felt the necessity of its withdrawal with permission to file a fresh one over the same subject-matter and without disclosing sufficient grounds for the purpose. The error committed by him by not making the necessary party which was rightly pinpointed at the very early stage of the suit by the defendant/respondent in his written statement could not be termed as a formal defect as envisaged by Order 23, Rule 1 (2), C.P.C. And, therefore, in the circumstances, respondent No.1 herein could not be permitted with an opportunity to commence a fresh trial by filing a fresh suit. The impugned order of the learned Appellate Court has certainly prejudiced the petitioner/defendant which is liable to be set aside.
9. It is true that the plaintiff is vested with powers to withdraw his suit at any time after its institution, but it is equally true that he does not have such right at his free-will affecting the right of the defendants and also the rights of the third party which might have been created by or arising from the orders passed or proceedings taken in the suit. Reliance in this respect can be placed on Amjad Rashid Khan Malik v. Mrs. Shahida Naeem Malik and others reported as (1992 SCM R 485). In identical situation, the august Supreme Court in an appeal arisen from a Constitutional Petition decided by this Court on 7-6-1974 had held that objection raised in the written statement for not impleading necessary party was an enough notice to the appellant and hence his appeal dismissed. Reference, in this context, can be made to 1989 SCM R 506, titled Akhtar A.I Khan and another v. Settlement Commissioner Peshawar and 4 others.
10. There is yet another aspect of the case which too goes against the respondent, i.e. Limitation.
Even if the requisite permission granted by the Court below is kept in field, then the date of filing fresh suit will be considered and not the date over which the suit was initially filed and hence the instant suit is liable to dismissal on this score alone.
11. The upshot of the above discussion is that this revision petition is accepted, the impugned order dated 9-2-1995 of the learned District Judge Dera Ismail Khan is set aside and suit of the plaintiff/respondent No. l stands dismissed with no order as to costs.