1. ' This is an application by the plaintiff under Order XXIII, rule 1, Code of Civil Procedure for withdrawal of suit unconditionally. Defendant No, 1 has objected to the grant of the application, inter alia, on the plea that the same is misconceived mil has been moved mala fide with a view to avoid adjudication of disputes between the parties.
2. ' The facts are that the plaintiff and defendants 1 to 7 are the sons, daughters and widow of deceased Mahboob Bakhsh who died at Karachi an 26.3-1965. The deceased left his estate which devolved upon the aforesaid pastes who survived him as his lawful heirs. The estate of the deceased which as set out is the plaint comprised a fractional share in a commercial building known a Mahboob Chambers, Saddar, Karachi, 50% share in another commercial building known as the Aseem Market, Nazimabad, Karachi, two open plots aad running business concerns, one at Karachi and one at Lahore.
3. ' In one of the properties, namely, open plot at Ssddar Bazar, Karachi, with some construction defendants Nos. 8 to 13 have 55% share and have been accordingly joined as pro forma parties.
4. ' On 23-12-1970, the plaintiff who is the son of the deceased filed the present suit for partition of the joint properties on an allegation that the co-sharers except defendant No, 1 who is one of the daughters of the deceased, were desirous of selling their share out of some of the properties but defendant No, 1 refused to permit them to do so and raised superfluous objections. This necessitated the filing of this suit.
5. ' On 19-12-1972 defendant No, 1 filed written statement contesting the suit and raising several pleas of fact and law. She, however, inter alit; averred that the suit for partition was misconceived and that in substance it was a suit for administration. She made a prayer that accounts be taken, assets of the deceased be ascertained and be distributed among the heirs of the deceased according to Muslim I aw. It was further contended that the plaintiff and defendants 2 to 7 are in possession of the business properties and income and as such are liable to account for the same to defendant No, 1 and other heirs. Defendants 2, 3, 4, 5, 6, 7, 8, 9, 10 to 13 also filed written statements. Some of the defendants supported the plaintiff and joined in the prayer for partition of the joint property.
6. ' Before the issues could be framed, however, the present application was-submitted on 27-3.1974 for withdrawal of the suit unconditionally. To this application objections were filed by defendant No, 1 resisting the prayer for withdrawal of the suit and alleging that the application was moved for ulterior reasons on account of the prayer by defendant No, 1 for appointment of receiver, and for taking of accounts. Simultaneously, defendant No, I also submitted application under Order I, rule 10 read with Order I, rules 8 and 11 and section 151, C. P. C. Praying therein that she be transposed as the plaintiff on the ground that the plaintiff was avoiding administration of the estate of the deceased.
7. ' The learned counsel appearing for the parties have addressed me at length. It was contended by Mr. Malik Muhammad Saeed for the plaintiff that the plaintiff has the absolute right to give up his claim and withdraw the suit and if the defendant No, 1 wanted the adjudication of her rights, it was open to her to file a separate suit. Mr. Haider Shaikh, on the other band, vehemently opposed the application and contended that the suit in its nature is a suit for administration of the property of the deceased and as such the plaintiff does rot have unhampered right to bring an end to the litigation by withdrawing the suit. In support of his contention the learned counsel took me through the contents of the plaint in order to show that the claim in suit in substance is for administration of the estate.
8. ' Now there is no doubt that Order XXIII, rule 1, clause (3), -C. P. C. Authorises the plaintiff to withdraw the suit at any time after the institution of the suit without the permission of the Court and the only consequence of such withdrawal is that he 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. As a general rule therefore the plaintiff can do this of his own accord and the order of the Court is not necessary for the purpose. However, it seems that the Courts have taken the view that plaintiff cannot be allowed to withdraw the suit so as to deprive the defendant of any rights that may have accrued to him. Incidents of such cases are in case of partition where the defendant has become entitled under section 3 of the Partition Act to purchase the plaintiff's share at a valuation to be fixed by the Court or where in a suit for partition or a suit for accounts a preliminary decree has been passed. In such cases judicial opinion has leaned against giving the plaintiff an absolute right of terminating the suit by withdrawing it.
9. ' Now the first question that falls for consideration is to determine the real nature of the suit filed by the plaintiff. As stated earlier it was contended on behalf of the contesting defendant that the suit in substance is a suit for administration of the estate of the deceased, and as such the defendants being the heirs or next-of-kin of the deceased are in the position of plaintiffs : In case of a decree for administration they shall be entitled to relief on the distribution of the estate of the deceased according to their share under Mohammedan Law. The perusal of the plaint shows that the cause of action for bringing the suit was the refusal on the part of the defendant No, 1 to accord her permission for selling some of the property to which the parties to the suit succeeded, Prayer clause in the suit is as follows :-
(a) Partition of the share of the plaintiff and other co-owners in the said properties may be affected with full and complete rights.
(b) If for any reason the properties in suit are found incapable of heir g partitioned, the value of the share of the defendant 1, be determined and assessed so that the same cauld be paid by the plaintiff jointly or severally with defendants 2 to 7.
10. ' Reading the body of the plaint along with the relief clause there is no doubt that this is a suit for partition of joint property. However, the learned counsel made a particular reference to paragraph 6 of the plaint which deals with the date of the cause of action. In this para. After referring to the refusal of the defendant No, 1 to give her consent to the disposal of some of the properties the following statement has been made : and consequently the plaintiff has to seek legal redress for getting the properties partitioned by invoking the jurisdiction of this Humble Court on the 19th August, 1970, when the defendant No, 1 refused to accede to the request of the Vain tiff for an amicable division of the assets and liabilities left by the deceased, whose properties the plaintiff and defendants 1 to 7 have inherited."
11. ' It was contended by the learned counsel that the reference in h's paragraph to the "amicable division of assets and liabilities" left by the deceased clearly spells out that the present suit is in substance a suit for administration of the estate of the deceased. A reference was made in this connection to Mahbaob Alam v. Razta Begum (1) which related to a suit filed by a sister against her brothers and sisters for administration of the estate left by her father. On a question of the maintainability of the suit having been raised by the defendants late Justice Kayani in an enlightening judgment examined the incidents of a suit for administration by a Muhammadan heir, and came to the conclusion that a suit for administration of the estate cf a deceased Muhammadan is competent under the Civil Procedure Code. The argument was based upon the rule of Mohammadan Law that the estate left by a Muslim vests immediately upon his death on his heirs and is held by them in specified shares. It was contended that as a necessary consequence no interest of the deceased survives in the estate so as to administer the same as his estate. This contention was repelled and as ' s'ated above it was held that a suit for administration in such a case was competent in law. In this connection the rule of Mohammadan Law was noticed which stipulates tbat upon the death of a Muslim first his funeral ceremony and burial expenses, next the discharge of his just debts from the whole of his remaining effects ; then the payment of his legacies out of the third of what remains after his debts are paid ; and lastly, the distribu- don of the residue among his successors, is to be made. Oa the basis of this rule it was observed by late Justice Kayani that it thus seems that the distribution of the residue among the successors of a deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of the propositus, and as the distribution of the residue forms part of the administration of an estate it clearly falls within the province of an administration suit. Cornelius, J.
12. (as he then was) concurring with Kayani, J. Added an observation of his own to the effect that the mere fact of the possibility of the present plaintiff bringing a suit in a different form is no bar to her adopting the form of an administration suit as permitted by law. Placing his reliance on these passages the learned counsel contended that there is no distinction between a suit filed by a Mohammadan heir for partition of properties inherited from a deceased and a suit for administration. This submission, in my opinion, is wholly unwarranted. In Mehdi
(1) PLD 1949 Lah. 263 ' Hussain Shah v. Shadoo Bibi (1) their Lordships elucidated the nature of administration suit in the following words : "In a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of the Court. This means that the Court will assure the functions of an administrator, it will realise the assets, will discharge debts and legacies, will take an account of the income of the property and will distribute the assets among those entitled to it."
13. ' The Dacca High Court in the case of Khayeratullah Mondal v. Kamala Kanta Saha (2) on the other hand, while analysing the nature and scope of a partition suit made the following statement of law ' In determining the nature, characteristics and scope of a partition suit the allegations made by the plaintiff alone must be considered ; the pleas raised by the defendant do not affect the question.
14. ' In suits of this nature the plaintiff does not seek to enforce a right to a share in the property en the ground that it is joint property but merely seeks to obtain separate possession of a share therein and thus merely asks for a ch Inge in the mode of enjoyment thereof."
15. Having regard to the above exposition of the scope and characteristics of a ARlit for partition and a slit for administration, it is clear that the two types of suits are totally different in nature. It cannot he said that in every case of partition at the instance of a Mohammedan heir the suit partakes the Mature of administration. As is clearly stipulated by the Supreme Court that the distribution of the estates among the heirs is only one of the incidents of an administration suit. The main object underlying the administration a suit is to have the estate of the deceased administered under the decree of the Court which involves the realisation of the assets, discharge of the debts and legacies and taking of accounts. Whereas in a partition suit it should be entirely unnecessary to undertake these exercises, such a suit is only directed towards obtaining separate possession of a share in the joint property so that the resultant effect to be achieved by the decree is merely change in the mode of enjoyment.
16. ' In the light of the aforesaid discussion it is not difficult to see that the frame of the present suit is purely that of a partition suit as is expressly reflected from the prayer clause of the suit. Even the cause of action disclosed in the plaint does not speak of any dispute or difficulty having arisen with regard to the realisation of the property or payment of debts or legacies of the deceased. A mere reference in the body e the plaint without its being relevant to the relief sought in the stft, to division of assets and liabilities, cannot determine the nature of the suit as a whole. Order VII, rule 1, C. P. C.
17. Requires the plaint to contain among other things the facts constituting the cause of action and when it arose as well as the relief which the plairaiff claims. Order VI, rule 2 stipulates that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim. The term 'cause of action' refers to every fact which, if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment, and which if not proved, gives the defendant a right to judgment. Thus it has been held that every allegation in the plaint is not a part of the cause of action unless the plaintiffr
(1) PLD 1962 SC 291 (2) PLD 1960 Dacca 555 ' has to prove the same in order to obtain judgment. The reference to liabilities of the deceased, in the paragraph relating to the accrual of the cause of action, therefore, to my mind, is irrelevant for the present purposes. Locking to the relief sought in the suit, this allegation is not material to the cause of action set out in the plaint, which obviously relates to the refusal on the part of the defendant No, 1 to agree to the disposal of some of the properties jointly held by the parties. Thus, there cannot be any doubt that the present suit is a suit simply for partition of the joint properties and cannot be equated with a suit for administration. Even the defendant No, 1 in para. 10 of his written statement has categorically pleaded that the present suit for partition is not maintainable and that the proper course is to institute a suit for administration to enable all the heirs including the plaintiff and defendant No, 1 to take accounts, ascertain assets, to ascertain the income and the expenditure and to distribute all assets and liabilities according to Muslim Law emong the heirs.
18. Therefore, the defendant No, 1 herself did not treat the present suit as a suit for administration and as such cannot be allowed to turn round and plead now that the present suit is in substance a suit for administration.
19. ' 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 snit cannot be forced by the Court to prosecute the proceedings which he does not wish to continue. In exceptional circurn stances, 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. In Mumtaz All v. Pakistan (1) Anwarul Hach J. (as his I ordship then was) while considering the question of withdrawal of a constitutional petition which was opposed by the respondent observed : "If any plaintiff is not seeking 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 Oreer XXIII. The Court does not appear, in such circumstances, to have any power to compel the plaintiff to continue the suit."
20. ' In arriving at this conclusion his Lordship followed Sm. Saras Watt Baia Samanta and others v.
21. Surabala Dassi and others (2). The last-mentioned case related to a suit for partiqoa by a co- sharer of several properties. After a protracted hearing of the suit, at the close of the arguments finding that the suit could not possibly succeed, the plaintiff applied for withdrawal of the suit with a prayer to institute a fresh suit. This application was, however, rejected. Thereupon the plaintiff moved a further application for withdrawal of the suit unconditionally. The learned Judges came to the conclusion that in such a situation the Court has no discretion in the matter and the plaintiff is entitled to withdraw the suit as a matter of right. In Huila, Rat v. K. B. Bass & Company (3), an extensive review of the relevant
(1) PLD 1971 Lab. 395 (2) AIR 1957 Cal. 57
(3) AIR 1963 All. 368 ' case-law was undertaken on the question of right of withdrawal of a plaintiff under Order XXIII, rule 1, C. P. C. This was a suit by the plaintiff-firm for rendition of accounts and for a decree in respect of such sums as may be found cue from the defendants as its agent on the basis of such accounts.
22. The defendant resisted the suit on the ground that one of the partners had understood the accounts and a certain sum was found due from the plaintiff to the defendant. After framing of issues the plaintiff filed an application for withdrawal of suit under Order XXIII, rule 1 without seeking leave to file a 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 cue to him on taking accounts be passed on his paying court-fees. 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 v, ithdraw the suit unconditionally under Order XXIII, rule 1 in the absence of a preliminary decree, 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, Rareabhadran. J. Pointed out that in all the cases cited in support of the submission that the plaintiff does not nave the 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 haci been made, f e. The basic rights of the parties bad been decided. It was, therefore, concluded that in this case since none of these factors existed, the right to withdraw the suit is absolute. The learned Judge even doubted the coneetness of the view held in Dersey Khestay v. Hilikhairaj (1) which was a case of partnership and it was held therein that such tants are of a peculiar chars: ter and the parties to such suit do not stand to each other precisely in the same relation as parties to suits generally. It was further observed that each of the parties to a partnership suit, however, he may be formally ranked, is really in turn plaintiff and defendant and in both capacities goes before the Court for the adjudication of his rights relatively to the other partners, which the Court endeavours to determine by its decree. The 'mrried Judge followed the view held in Hassan Badsha v. Razfah Begum (2). This was a partition suit in which the plaint distinctly averred that as a division by metes and bounds 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. Subsequently, the plaintiff Sled an application alleging that the property was capable of convenient division by 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 declined to allow the plaintiff to amend his plaint or withdraw the admission made before the Court. Thereafter the plaintiff applied for leave to withdraw the suit unconditionally,
(1) AIR 1942 Born. 35 (2) AIR 1949 Mad. 772 1 ' but the Court below declined 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 indefeasible 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. This would have been the case, if the Court had made the valuation and made an order that half share of the plaintiff should be conveyed to the defendant on the valuation determined by the Court. But the stage new reached in this litigation was that the defendant had applied under section 3 for the appointment of a Commissioner for determinir g the value and the Commissioner had yet to determine the value. It might be that an advantage had accrued to the defendant by reason of the admissions made in the plaint and before the Court as regards the impracticability of dividing the property.
23. That, however, did not clothe the defendant with any enforcible right and did not prevent the plaintiff from exercising the right of a suitor to withdraw his suit at this stage.
24. ' The learned counsel for defendant No, 1 placed reliance on various cases to support his submission that in the present case the defendant is virtually in the position of a plaintiff and should, therefore, be allowed to prosecute the case by his transposition as a plaintiff in the suit. I have already examined the nature of the suit and in the view that I have taken to the effect that this suit is simply a partition suit it is difficult to agree that the defendant No, 1 enjoys the capacity of a plaintiff. I shall briefly refer to the decisions cited at the Bar by the learned counsel. Abdul Razzaq v. Muhammad Shah (1) was relied upon for the proposition that a partition suit by a Muhammadan is in substance an administration suit. I have already pointed out the distinction between the two types of suits and the present judgment is of no help as no reasons have been assigned for the view held therein. The facts in Narayana v. Gurramma (2) are distinguishable as (tat was a case of promissory note aad one of the defendants was permitted to transpose as plaintiff to continue the suit. It is, however, not clear whether the original plaintiff had sought to withdraw from the suit. The next case cited was Atma Ram v. Beni Prasad (3) in which a suit was brought by the Collector on behalf of his wards under the U. P. Court of Wards Act, and later on was sought to be withdrawn. The application of the widows under wardship to be made plaintiffs was dismissed. The next reversioner Beni Prasad also applied to be substituted as a plaintiff but his application was dismissed on the ground that he was not shown as a party to the suit, and it was not shown that there had been an arrangement creating devolution of interest in his favour during the pendency of the suit. The Privy Council held that the learned Subordinate Judge had totally misapprehended the nature of Beni Prasad's application. It was further held that the suit filed on behalf of the widows by the Collector was a representative one-in which Beni Prasad, as nearest reversioner was interested, that a decree properly obtained against the widows would be binding on him as next reversioner. On the other hand, if the suit succeeded, his right as the next reversioner of the plaintiff's husbsrd would be established. It was, therefore, held that in these circumstances, Beni Prasad had a right ex debito justice to be added as plaintiff and given an opportunity of
(1) AIR 1962 Mad. 346 (2) AIR 1948 Mad. 364
(3) AIR 1935 P C 185 ' continuing the suit if so advised. However, the facts of the present case are totally distinguishable, inasmuch as the present snit has not been filed in a representative capacity and its withdrawal would not in any way affect any other party. Similarly the facts in Kunn Kumbi Achan v. Aman (I) are also distinguishable inasmuch as there also a suit was brought in a representative capacity in which it was held that the plaintiff bad no right to withdraw the name and could be continued by persons in whose interest the suit was brought. In Muthuralal v. Chiranjilal (2) a suit for dissolution of partnership and rendition of accounts was brought and in which a preliminary decree had been passed. Later on the parties filed an application for reference of their disputes to arbitration which was accepted by the Court. At this stage the plaintiff moved for withdrawal of the suit under Order XXIII, rule 2, C. P. C. It was held that in view of these facts withdrawal was not permissible unless consented to by all the defendants. It will be seen that-in this case the defendants had acquired valuable rights in so far as a preliminary decree had already been passed and a reference was made to arbitration. In Sethai Achi v. Mayappa (3) the suit was compromised by which a stranger was assigned rights, whereupon a petition was moved by the stranger to be impleaded in suit and to pass a decree in terms of the compromise. The plaintiff sought to withdraw the suit. The prayer for withdrawal was disallowed on the ground that the stranger was entitled to be impleaded as a party to the suit as he was the person to whom valuable rights were assigned under the compromise and, therefore, the suit should not be dismissed merely on the withdrawal of the plaintiff from it. At the cost of repetition I would once again point out that in this case also the plaintiff was refused the right to withdraw because of the fact that by compromise valuable rights had accrued in favour of the stranger. The last case cited was Devsey Khatary v. Hirji Khairaj reference to which has already been made. However, this case relates to a suit for dissolution for partnership and accounts which is a suit of entirely different nature from a partition suit.
25. ' It will be seen from the above review of the case-law that the consensus of judicial opinion supports the view that it is the right of the plaintiff to give up his suit by withdrawal and the Court can step in to refuse termination of the proceedings only in special circumstances where some adjudication has been made or valuable rights created in favour of the defendants, in which case the plaintiff cannot be allowed to deprive the defendants of the fruits of litigation by his unilateral act of withdrawal from the suit. In the present case no such circumstances have been pointed out.
26. The only allegation is that the plaintiff is seeking to withdraw the suit to avoid the appointment of receiver. The mere application for appointment of a receiver F does not create any right in the applicant and cannot, therefore, be construed as a hurdle in the way of the plaintiff to bring an end to the litigation by withdrawing from the suit.
27. ' It was, however, emphatically contended that the defendant being a co-sharer in the properties in the suit, he may be permitted to be transposed as plaintiff and the plaintiff be shifted to the array of defendants so that the suit could proceed to final conclusion. There is no doubt that the Court enjoys wide powers for transposition of parties under Order 1, rule 10, a C. P. C. But this power cannot be exercised at the instance of a party as a
(1) AIR 1932 Mad. 31 (2) AIR 1%2 Raj. 109
(3) AIR 1934 Mad. 337 19 matter of right. In the present case it was open to the plaintiff to make a counter-claim in his written statement but no such claim has been set up. The pleas raised by the defendant are to a great extent in conflict with those set out in the plaint. It would, therefore, not be possible for the defendant No, 1 to prosecute the present suit in the form in which it has been brought and the pleas that are set up in the plaint. In Hulks Rai's case, to which reference has been made above, a similar request was made but was turned down on the ground that the transposition would raise questions of jurisdiction, limitation and court-fees. It was also found that the nature of the suit would be changed if the defendant was transposed as the plaintiff. In the present case, also the defendant has challenged the maintainability of the partition suit and has pleaded that the proper course for the plaintiff was to file a suit for administration of the estate of the deceased. In the face of such pleas it is not known how the defendant is seeking to be transposed as the plaintiff.
28. ' For all the aforesaid reasons I would allow the application of the plaintiff to withdraw the suit and as a result this suit is dismissed as withdrawn. However, since the defendant has contested the suit the plaintiff shall bear the costs of the defendant No, 1.