MUHAMMAD YUNUS SURAKHVI, J.- This appeal, by way of leave of the Court, is directed against a consolidated judgment of the High Court dated 16.4.1999, whereby the appeals filed by the respondents were y accepted and the case was remanded to the Trial Court.
2. The necessary fats giving rise to the present appeal, are that land in dispute measuring 25 kanals and 10 marlas of village Manda Tehsil Mirpur was in the ownership of one Ghulam Qadir and Ghulam Haider deceased who are now represented by Rehm Ali and proforma-respondents who enjoyed occupancy rights and was in possession of Rehm Ali who had mortgaged part of the land to proforma-respondents. On the death of Rehm Ali the occupancy rights of his share also devolved on proforma Respondents. On 17.6.1967 mutation No. 194 under Land Reforms Act conferred proprietary rights on Muhammad Malik. On 9.1.1972 the said Muhammad Malik executed a sale-deed of land in dispute in favour of appellants. On 17.8.1975 the real respondents filed a declaratory suit challenging the validity of mutation No. 194 and sale-deed in favour of appellants which was dismissed on 26.12.1976. Their application for restoration of the suit was dismissed on 31.1.1979. This order was appealed against on 7.2.1979 which was accepted on 10.12.1980. On 5.5.1979 the appellants filed 3 separate suits for redemption of land entered in survey Nos. 98, 208, 45, 54, 55 and 59 against the proforma respondents 21 to 28. During the pendency of the first suit on 1.2.1979 real respondents filed another declaratory suit whereby mutation No. 194 which was sanctioned under Land Reforms Act was challenged. Similarly the sale- deed executed by Muhammad Malik in favour of appellants was also challenged. This suit was amended in 1988. The validity of mutation No. 194 also remained under controversy between the parties before the Land Commission and was concluded through judgment of this Court dated 20. 12.1993 in Civil Appeal No. 32 of 1993 titled Karamat Ali and another vs. Sardar Ali and others in which it was upheld. On 30. 12.1989 the Trial Court dismissed the suit No. 228 filed by the respondents mainly on the ground of look of jurisdiction as postulated under section 32 of the Land Reforms Act and decreed the suits filed by the appellants against proforma- respondents 21 to 28 for redemption. On 21.10.1993 the District Judge through a consolidated judgment dismissed the 4 appeals filed by the respondents. The respondents then filed 4 separate appeals Nos. 7, 8, 9 and 10 in the High Court which were accepted through a consolidated judgment dated 16.4.1999 mainly on the following grounds:-
(i) that the Supreme Court has not given any finding in respect of the contents of mutation No. 194;
(ii) that bar of jurisdiction applies when action is against law and without jurisdiction;
(iii) that ordinarily when jurisdiction is conclusive the Civil Court will not normally interfere but where mistake appears on the face of record the position is otherwise.
(iv) that in the plaint there is an allegation of extinguishment of occupancy rights in 1991 Bk. And also of adverse possession; and
(v) that the Officers acting under Land Reforms Act had no authority to grant the proprietary rights.
3. The aforesaid judgment and decree of the High Court is challenged by the appellants inter alia on the following grounds:--
(i) that the learned Judge in the High Court has failed, to appreciate that the jurisdiction of Civil Court was totally ousted due to conferment of proprietary rights under Land Reforms Act;
(ii) that the learned Judge has failed to point out specifically under what provision of law the proprietary rights conferred on proforma respondents were without lawful authority;
(iii) that the learned Judge has failed to appreciate that the grant of proprietary rights to the proforma-respondents under section 25 of the Land Reforms Act having not been challenged, the same had attained finality and the same is the basis of sanction of mutation No. 194 which by itself is not an order of conferment of proprietary rights; and
(iv) that the High Court failed to take note of the fact that during the pendency of the first suit the subsequent suit pertaining to the same cause of action was filed in 1979 without seeking the permission of Court and as such was liable to be dismissed.
4. Raja Muhammad Siddique the learned counsel for the appellants, vehemently contended that the first declaratory. Suit No. 23 was filed by respondents on 17.8.1975. This suit was dismissed but the same was ultimately restored. During the pendency of the first suit another suit No. 39/79 was filed by respondents on 31.1.1979 without seeking the permission of the Court for filing a fresh suit or disclosing that there were formal defects in the former suit. On 21.7.1976 an application was moved by respondents that they wanted to withdraw their suit filed in 1975 as there were some formal defects in the same and permission be granted for filing a fresh suit. This application remained pending that on 29.8.1988 another application was moved by respondents to the effect that they wanted to withdraw their former suit if they are allowed to raise the plea of adverse possession in the subsequent suit. This application was disposed of vide order dated 29.8.1988. The English translation of the interim order is as follows:-- "The case was called upon. The counsel for the parties are Present the counsel for the plaintiff has stated that he does not want to withdraw the suit, therefore" the application be dismissed. The statement of counsel was recorded. The application therefore stands dismissed. Plaintiffs are directed to produce their evidence and if they want their witnesses to be summoned the list of witnesses may be submitted in the Court, their expenses be deposited and file be placed before the Court on 5.10.1988. It was further stated in the order that the counsel for plaintiffs has moved an application for withdrawal of suit on the ground that he wanted to raise the plea of adverse possession in the subsequent suit and withdraw the former suit. The statement of counsel for the plaintiffs was recorded. The statement of the counsel for defendants was also recorded who had no objection if the suit is allowed to be withdrawn as such the suit is allowed to be withdrawn. The relevant documents may be handed over to the counsel for the plaintiffs on execution of a receipt".
This order dated 29.8.1988, according to the learned counsel for the appellants, shows that the subsequent suit with regard to the same cause of action was filed by respondents on 31.1.1979 without seeking the \ permission of the Court to file a fresh suit or pointing out any formal defect in the former suit therefore as provided under Order XXIII sub-rule (3) the suit filed in 1979 was liable to be dismissed.
5. Ch. Muhammad Sharif Tariq, the learned counsel for respondents, contended that the respondents duly sought permission from the Court to file the subsequent suit and the Court vide its order dated 29.8.1988 granted the permission to respondents to file the subsequent suit, thus the same is not hit by the provisions of Order XXIII, sub-rule (3) of the Code of Civil Procedure.
6. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the Trial Court as well as the District Judge dismissed the suit filed by respondents on account of lack of jurisdiction of Civil Court as provided under section 32 of the Land Reforms Act. However, the High Court formed the view that on account of allegations made in the plaint the suit was triable by Civil Court and as such remanded the case to the Trial. Court to proceed with it according to law. But, as stated earlier, we have noticed and both the learned counsel for the parties have addressed their arguments for and against the proposition which is confronting us as to whether during the pendency of the first suit which was filed on 17.8.1975 the subsequent suit filed on 1.2.1979 on similar cause of action was maintainable or not. To have a correct ' perception of the proposition involved, we may refer to Order XXIII of the Code of Civil Procedure which reads as follows:-- " 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 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.
(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 for stich 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.
(4) xxx xxx xxx xxx xxx xxx xxx xxx xxx."
7. The plain reading of the above order shows that sub-rule (1) contemplates withdrawal of suit which can be done at any time without the prior permission of the Court, but under sub-rule (2) the plaintiff may on application withdraw from the suit with liberty to institute a fresh suit. Where he does not desire to institute a fresh suit he can withdraw his suit and permission io withdraw is not necessary. The object of rule is to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. The plaintiff has the right to withdraw his suit whenever he desires but he cannot tile a fresh suit on the same subject- matter unless a permission is sought for filing the fresh suit. In a case reported as Gul Sahib Din and others vs. Sultan and others (PLJ 1982 SC 512), it was observed by the Supreme Court of Pakistan at page 513 as follows:- "We have examined the contentions of the learned counsel and come to the conclusion that the application for permission to withdraw the suit contains no particulars regarding the formal defects in the suit, and all what was stated therein was that in the plaint there were formal defects which may result in detriment to the rights of the petitioners."
Thus the order of High Court remanding case being correct was not interfered with.
In a case reported as Malang Dad vs. Mst. Mahpari and others (PLD 1993 SC 6) it was observed-at page 9 as follows:-- "There cannot be any cavil with the proposition that if under Order XXIII, Rule 2, C.P.C, permission to withdraw a pending suit with the right to file a fresh suit, is granted to a plaintiff subject to payment of certain costs, it is a term on which such permission is granted and in the absence of fulfilment of the same, the suit is liable to be dismissed being incompetent as in the absence of payment of costs, there cannot be a proper suit before the Court."
In a case reported as Chairman Municipal Committee vs. Habibullah (PLJ 1987 AJK 25) it was observed at page 27 of the report as under:-- "It is evident from the language of Rule 1, Order 23, CPC that Court enjoys vast power to permit withdrawal of the suit or part of it against all or any of the defendants in order to bring a fresh suit to avoid a formal defect which may ultimately affect the result of the suit or one account of some other sufficient grounds but at the same time, the power is to be exercised not at the pleasure and sweat will of the plaintiff but keeping in view the interests of the parties in order to do complete justice."
8. The order recorded by the Trial Court dated 29.8.,1988 explicitly shows that in the first instance as incorporated in the order that counsel for plaintiffs never wanted to withdraw the suit. Then the counsel for plaintiffs moved an application that he be allowed to withdraw the suit if he is allowed to raise a plea of adverse possession in the subsequent suit. Needless to say that it was not disclosed by the counsel for the plaintiffs- respondents as to what were the formal defects in the former suit to the detriment of the plaintiffs. As it has been observed in a reported case of Supreme Court of Pakistan jurisdiction that an application for withdrawal of the suit with permission to file a fresh suit should not be vague and unfounded but it must specifically state the formal defects on account of which ultimately the suit is liable to be dismissed. On disclosure of formal defects there should be the satisfaction of Court that in fact the defects pointed out are likely to adversely affect the case of plaintiff that a permission to institute a fresh suit is granted by the Court. In the instant case neither there was a prayer on the part of plaintiffs-respondents that on account of formal defects in the former suit the permission may be granted to institute the fresh suit nor the permission to institute the fresh suit was granted to plaintiffs-respondents, thus in our considered view the first suit which was filed in 1975 stood withdrawn by the plaintiffs-respondents vide order of the Trial Court dated 29.8.1988, while the subsequent suit filed in 1979 without seeking the permission of the Court to institute the fresh suit is hit by the provisions of Order XXIII, sub-rule (3).
In the instant case the subsequent suit was filed during the pendency of the former suit and the prayer for withdrawing the first suit was made after so many years. Even the prayer was for withdrawal of suit not to reinstitute the fresh suit but to introduce an amendment in the subsequent suit. The principle which we have laid down that in presence of first suit the subsequent suit without the permission of Court to reinstitute the first suit on the basis of formal defects squarely applies to cases which are being withdrawn. The provisions of Order XXIII, sub-rule (3) cannot be defeated by instituting a fresh suit before withdrawing the previously filed suit. It is well- settled principle of law that what is not allowed to be done directly cannot be allowed to be done indirectly. Therefore sub-rule (3) mentioned above, applies to the present case.
9. In view of the order of dismissal of suit which we are going to pass in the instant case we need not resort to the question as to whether the Civil Court had the jurisdiction to try the suit or not.
10. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment and decree passed by the High Court. Consequently the suit No. 39/79 filed by plaintiffs- respondents stands dismissed. In the circumstances of the case, we pass no order as to costs.