SARDAR MUHAMMAD NAWAZ KHAN, J.--- This revision petition is to challenge the order of Senior Civil Judge, Muzaffarabad dated 13.2.2001 whereby, an application to dismiss a suit by the respondents brought before the said Court on 21.10.2000 was disallowed.
2. The relevant facts resulting into above titled revision petitions are that Mst. Akbar Jan respondent, herein, brought a declaratory suit alongwith prayer for joint possession in the Court of Senior Civil Judge on 16.2.2000. A temporary injunction was also issued against the opposite party (petitioners herein). Later on, the temporary injunction initially issued in favour of respondent No. 1 was modified and the order was kept intact to the extent of her share in the suit land measuring 3 kanals, 7 marlas. This order of the Trial Court was challenged before District Judge with no success.
A revision petition against the order of District Judge brought before this Court stood dismissed for want of prosecution on 25.7.2000. The respondent on the said date filed a fresh suit almost on the same cause of action with the difference that a fraction of share coming to 1 kanal, 2 marlas was added in the suit land alongwith a consequential relief seeking cancellation of different transactions in shape of gift-deeds and sale-deeds made by the petitioner-defendant out of the joint estate with no mention about the former suit. During pendency of both the suits, the respondent-plaintiff withdrew her former suit unconditionally. An application by the petitioner- defendant was moved before the Trial Court to dismiss the subsequent suit on the ground that the same was filed without prior permission of the Court. The Trial Court after hearing the learned counsel for the parties, disallowed the application submitted by the defendant by relying on a judgment of Supreme Court of Pakistan (PLD 1983-344) wherein the following observation was made by the Hon'able Court:- "Order 23, Rule 1. Withdrawal of suit--Fresh suit already instituted and pending at the time of withdrawal of earlier suit-Held, not barred".
The petitioner feeling aggrieved by the Order of this Court brought the present revision petition for vacation of the impugned order and dismissal of the subsequent suit brought by the respondent Mst. Akbar Jan without permission of the Court.
3. The learned counsel for the petitioner argued that under Order 23, Rules 2 and 3, C.P.C. No subsequent suit could be filed without prior permission of the Court after having withdrawn the former suit on the same cause of action or subject-matter. During his arguments, he relied-upon a case law titled Karamat All Khan and others v. Sardar All and others (2001 SCR 312) = (KLR 2001 SC (AJ&K) 224). The Hon'ble Supreme Court made the following observations :- "In the instant case the subsequent suit was filed during the pendency of to former suit and the prayer for withdrawing the first suit was made after so many years. Even the prayer for withdrawal of suit not to re-institute 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 re-institute 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."
4. Conversely, the learned counsel for the respondents argued that the withdrawal of the former suit was made in presence of the opposite party and they did not raise any objection at that time therefore, they are estopped to raise this objection subsequently. It was further submitted that both the suits were sub judice before the Trial Court therefore, Order 23 was not applicable in the instant case because the same comes into play when the subsequent suit was yet to be filed after seeking permission from the Court for withdrawal of the former suit by pointing out formal defects in it therefore, the trial Judge had rightly dismissed the application by the petitioner.
5. The record of the instant case has been examined in the light of relevant law on the subject of withdrawal of a suit. The plain reading of Order 23 shows that sub-rule (1) of the order provides that withdrawal of a suit can be done at any time without prior permission of the Court however, sub- rule (2) places certain restrictions when an application to withdraw a suit with the permission to bring a, fresh suit is made before a Court. Where the plaintiff does not desire to institute a fresh suit he could withdraw his suit at any time and permission in this regard is not necessary. The object of rule as observed by the Hon'ble Supreme Court of Azad Jammu and Kashmir in the above-referred case 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 .File a fresh on the same subject-matter unless a permission is sought from the Court by pointing out formal defects in the former suit. Here in this case, the subsequent suit was brought before the Court in presence of the former suit and, after having done so, the former suit was withdrawn un-conditionally. The case-law referred to by the parties reveals an identical situation with which the learned Judges of Supreme Court of Pakistan and Supreme Court of Azad Jammu and Kashmir were confronted. In both the precedent cases, the subsequent suit was brought before the Court, in presence of former suit. The Supreme Court of Pakistan is of the view that when the subsequent suit was already on the file of the Court, the application of Order 23 is not attracted whereas our own Supreme Court is of the view that what is not allowed to be done directly cannot be allowed to be done indirectly. It is settled principle of law that if a plaintiff after having filed a suit about a subject-matter wants to withdraw it due to some formal defects in it, he is obliged to seek permission from the Court to bring a fresh suit about the same cause of action after having pointed out formal defects in the former suit. The present case, when tested on the touch-stone of the said law, it may be observed that the plaintiff-respondent has adopted a mode of bringing her subsequent suit on the file of the Court without following the legal course. Under law, no two suits about the same cause of action between the same parties can be allowed to continue and the legal course was to apply for withdrawal of the suit by pointing out formal defects in it and the subsequent suit was to be brought before the Court with its permission. The mode adopted by the respondent if allowed would amount to defeat the purpose of relevant law on the subject. The subsequent suit by the present respondent has been brought almost on the same cause of action as indicated earlier. The respondent through her subsequent suit did nothing but enhanced here share in the joint estate from 3 kanals, 7 marlas to 4 kanals, 9 marlas and sought cancellation of different transactions made by the petitioners and others out of the joint estate. Therefore, this addition in the subsequent suit could easily to be made by amendment in her former suit and there was no need to bring a fresh suit. The subsequent suit, as stated earlier, has been filed by violating a clearly laid-down law Therefore, it cannot be allowed to continue consequently, it stands dismissed by allowing the application for its dismissal. However, the course adopted by the respondent to bring a fresh suit in presence of former suit appears to be result of ill-advice or lack of professional skill on the part of her counsel. She is claiming her ancestral property from her collaterals who are holding possession of the joint estate. They have also brought a declaratory suit against her in the same Court. Her former suit has been withdrawn and subsequent suit stands dismissed by mischief of Order 23(3), C.P.C. Her right to ancestral property is being defeated on account of technicalities and it is something which amounts to defeat the ends of justice as she would be deprived of her valuable right to property. There appears no way-out as to how she can be allowed to contest for her right except to exercise inherent powers available to this Court. Thus, by exercising inherent powers of this Court, her former suit is restored to its original number. The Trial Court is directed to act accordingly. The respondent-plaintiff may move to amend her plaint in view of fresh information she has received which prompted her to bring her fresh suit, if so advised.
Petition stands disposed of accordingly.