TANVIR AHMED KHAN, J.---Leave to appeal is sought in the aforementioned two petitions against the judgment dated 13-12-1999 whereby a learned Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dismissed R.F.A. No,61 of 1997 filed by the petitioners with a direction to the District Collector, Rahim Yar Khan, to take necessary steps for the escheatment of the property in dispute as the same vested in the Government being its rightful owner under Article 172 of the Constitution of the Islamic Republic of Pakistan, [973. In Civil Petition No,22/L of 2000, the learned counsel for the petitioners has taken exception to paragraph 17 of the impugned judgment wherein the aforesaid direction has been made, while in Civil Petition No,84/L of 2000, exception has been taken to the entire impugned judgment. This case has got a chequered history. The facts briefly narrated for the disposal of these petitions are that land measuring 799 Kanals, 13 Marlas situated in MauzaKot Zulfiqar, Tehsil and District Rahim Yar Khan, belonged to one Sheikh Muhammad Shamas-ud-Din. The petitioners in Civil Petition No,84/L of 2000 claimed that said Sheikh Muhammad Shamas-ud-Din transferred land measuring 50 Bheegas to Alaf-ud-Din, their predecessor-in-interest on Adhlapi terms vide an agreement registered on 1-8-1934. Respecting the remaining land, his claim was that he was appointed as an agent and was entrusted with the supervision and management of the same. In this regard reference was made to a document executed on 14-3-1935, whereby his appointment as representative was made for fixed remuneration for the supervision of the land excluding the subject-matter of Adhlapi contract. It is reflected from the record that said Shamasud-Din went to Bombay in late thirties and since then his whereabouts are not known till date. Alaf-ud-Din, claiming himself to be in adverse possession, succeeded in managing to get Mutation No,207 entered in his name respecting the entire land sanctioned on 1-4-1946 on the basis of the same. On the other side of the picture, Rukan-ud-Din, predecessor-in-interest of the petitioners in Civil Petition No,22/L of 2000, claimed that henit chased the disputed land through one Ghulam Ahmad, general attorney of Shamas-ud-Din, who has already stated settled in Bombay, through a registered sale deed dated 9-3-1946. Said Rukan-ud-Din filed a declaratory suit on 10-2-1952 claiming ownership of the suit land on the basis of aforementioned registered sale deed. The predecessor-in-interest of the petitioners in Civil Petition No,84/L of 2000, Alaf-ud-Din contested the suit. Out of contradictory pleadings of 'the parties, issues were framed and the parties led their evidence. The learned trial Court vide its judgment dated 31-10-1960 dismissed the suit of Rukan- ud-Din and it was also held that Alaf-ud-Din's possession over the land in dispute was in the capacity of an agent of the original owner Shamas-ud-Din and was permissive in nature, therefore, it could not have matured into adverse possession. Regarding Rukan-ud-din, it was held by the learned trial Judge that he had failed to establish a valid title through a registered sale deed as neither the original owner Shamas-ud-Din appeared nor the alleged special attorney Ghulam Ahmad was produced before the Court. The learned Senior Civil Judge while dismissing the suit also made a direction that the copy of the judgment be sent to the Collector for information and examination on the question of escheatment of the property, subject-matter of the suit. Rukan-ud-Din filed an appeal against the judgment and decree of the learned Senior Civil Judge, which was dismissed by the learned District Judge, Rahim Yar Khan, vide his judgment dated 6-5- 1964. The learned First Appellate Court also maintained the direction of the learned Senior Civil Judge whereby a copy of the judgment was sent to the Collector to determine the question of escheatment. Rukan-ud-Din filed R.S.A. No,36 of 1964 before the Lahore High Court at Bahawalpur Bench, which was dismissed by a learned Single Judge vide his judgment dated 26-3-1980. It is pertinent to mention here that Alaf-ud-Din filed R.S.A. No,76 of 1964/BWP against the judgment of the District Judge and the same was also dismissed by the High Court on 3-11-1964. Thereafter, Rukan-ud-Din filed a petition for leave to appeal before this Court, which was converted into Civil Appeal No,209 of 1988 after the grant of leave on 26-6-1988. It is pertinent to mention here that Rukan-udDin side by side approached the Revenue Authorities taking exception to Mutation No,207 sanctioned on 1-4-1946 in favour of Alaf-ud-Din without disclosing the pendency of the matter before the Civil Court. The learned Member, Board of Revenue, through his order dated 19-11-1956 cancelled Mutation No,207 sanctioned in favour of Alaf-ud-Din on the basis of adverse possession of the disputed land. Mutation No,214 was got sanctioned under his orders in favour of Rukan-ud-Din on the basis of sale deed executed on 10-3-1946. The petitioners in Civil Petition No,22/L of 2000 i,e, successors ininterest of Rukan-ud-Din, at the time of hearing of Civil Appeal No,209 of 988 made an oral request for the withdrawal of the suit as the same had become infructuous after the relief granted by the learned Member, Board of Revenue, whereby Mutation No,214 was sanctioned in favour of the petitioners through his order dated 19-11-1956 after cancelling Mutation No,207 sanctioned in favour of Alaf-ud-Din. This Court dismissed the appeal as having become infructuous through an order dated 8-6-1991. The same reads as under: "After institution of the suit on 18-10-1952, the appellant got relief from the Member, Board of Revenue on 19-11-1956, therefore, the suit having become infructuous, the appellant would like to withdraw the suit with permission that if there is any interference in the rights of the appellant, the appellant shall have a right to sue. The appellant is allowed to withdraw the suit in the above terms. The appeal being, thus, infructuous, is dismissed. No costs."
However, subsequently this Court on 18-6-1991 took suomotu notice of its aforesaid order dated 8- 6-1)91 on the ground that the petitioners were refused withdrawal of the suit by the learned Single Judge of the Lahore High Court during the pendency of R.S.A. No,36 of 1964 which was dismissed on merits vide judgment dated 26-3-1980. The Collector was also directed by the High Court to examine the question of escheatment. Furthermore, the power of attorney upon which the whole case of Rukan-udDin was based was produced for the first time before this Court and there was no occasion to test its authenticity and genuineness, as such a notice was issued for suomotu review of the earlier order dated 8-6-1991 and the appeal was ordered to be decided on merits. It would be appropriate to reproduce the order of this Court passed on 18-6-1991 while ordering suomotu review:-- "This is with reference to the order dated 8-6-1991 whereby the appellant was allowed to withdraw the suit with permission to refine it in case there was any interference in his rights. The appellant was refused permission by the High Court to withdraw the suit and his R.S.A. Was dismissed on merits. The Collector was directed to examine the question of escheat as there appeared no other claimant of the property. The power of attorney on which the appellants' claim was exclusively based was for the first time produced in the Courts below, therefore, no occasion arose for testing its authenticity and genuineness. In that view of the matter order dated 8-6-1991 appears to deserve review suomotu and appeal decided on merits. Let the matter be processed. "
(Underlining is ours). This Court, after hearing the parties, recalled the suomotu revieworder on 17-2-1997 whereby the appellants of Civil Appeal No,209 of 1988, the present petitioners in Civil Petition No,22/L of 2000, were allowed to withdraw the suit with permission to re-file it if there was any interference in their rights. It was also held that the withdrawal of the suit obviously would not bar initiation of appropriate proceedings by appropriate authority/party by showing that the disputed land did not vest legally and validly in Rukanud-Din, predecessor-in-interest of the petitioners in Civil Petition No,22/L of 2000. Thereafter, second round of litigation started whereby Alaf-ud-Din, predecessor-in-interest of the petitioners in Civil Petition No,84/L of 2000, filed a suit on 26-6-1997 for declaration, cancellation of documents, restoration of Mutation No,207, possession, mesne profits and permanent injunction taking exception to Mutation No,214, which was sanctioned in favour of Rukan-ud-Din under the order of the learned Member, Board of Revenue dated 19-11-1956. The respondents, who are petitioners in Civil Petition No,22/L of 2000, filed an application under Order VII, Rule 11, C.P.0 for the rejection of the plaint wherein a specific plea of res judicata was taken inter alia on the ground that the claim of the predecessor-in-interest of the petitioners Alaf-ud-Din, was rejected by the learned Senior Civil Judge, Rahim Yar Khan, in the earlier round of litigation through his judgment dated 31- 10-1960, which determination was maintained by the learned first Appellate Court as well as the learned Single Judge of the Lahore High Court. The plaint was, accordingly, rejected by the learned Civil Judge 1st Class, Rahim Yar Khan, through his order dated 6-10-1997 under Order VII, Rule 11, C.P.C. The petitioners Bashir Ahmed etc. Filed R.F.A. No,61 of 1997 before the Lahore High Court at Bahawalpur Bench, which too was dismissed by a learned Division Bench through its judgment dated 13-12-1999. Hence, these petitions for leave to appeal. It is inter alia argued by the learned counsel for the petitioners in Civil Petition No,22/L of 2000 that their title to the disputed land was accepted by the learned Member, Board of Revenue, through his order dated 19-11-1956 by sanctioning Mutation No,214 and after the withdrawal of the suit the effect of the judgment earlier given by the High Court was done away with, the learned Division Bench of the Lahore High Court had committed an illegality in making observation/direction for the escheatment of the property under Article 172 of the Constitution. He has further contended that the learned Judges of the Division Bench have committed an error in basing their decision on the earlier round of litigation whereby the civil suit filed by said Rukan-ud-Din was dismissed by the learned Senior Civil Judge, Rahim Yar Khan, on 31-10-1960; the appeal preferred by him was dismissed by the learned District Judge, Rahim Yar Khan. On 6-5-1964 and R.S.A. No,36 of 1964 filed by him also met the same fate as it was dismissed by the Lahore High Court on 25-3-1980.
However, during the pendency of Civil Appeal No,209 of 1988 before this Court, the petitioners' appeal was dismissed as having become infructuous and the suit was allowed to be withdrawn at an oral request. According to the learned counsel, because of the withdrawal of the suit, all the judgments earlier given by different forums had evaporated/washed away along with the findings as well as the decrees which were maintained by the High Court while dismissing R.S.A. No,36 of 1964. The proceedings, according to him, in the suit should be deemed to have never been instituted. The learned Judges of the High Court in the circumstances have committed a grave illegality in making reference to those judgments in paragraph 17 of the impugned judgment and making direction to the Collector, Rahim Yar Khan, to take necessary steps for the escheatment of the property as the same vested in the Government under Article 172 of the Constitution. He has made reference to certain precedents. Learned counsel appearing for the petitioners in Civil Petition No,84/L of 2000 has taken exception to the entire impugned judgment as, according to him, he was admittedly having a fresh cause of action after the decision of this Court in suomotu review dated 17-2-1997 whereby it was held that the withdrawal of the suit would obviously not bar initiation of appropriate proceedings by appropriate authority/party of showing that the land in dispute did not vest legally and validly in Rukan-ud-Din who was represented by his legal heirs. Learned Law Officer, Miss Yasmin Sehgal, has supported the impugned judgment stating that the withdrawal of the suit would not dissipate the judgments given by the subordinate Courts i,e, the Senior Civil Judge and the District Judge, which were maintained by the High Court. She has further contended that the sanction of Mutation No,214 in favour of Rukan-ud-Din by the Member, Board of Revenue, which was of summary nature, would not clothe him with the title of the property in dispute. In support of her above contentions she has also placed reliance on a number of judgments. We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire material placed on record with their assistance. The contention of the learned senior counsel for the petitioners in Civil Petition No,22/L of 2000, Mr. S.M. Zafar, that permission for the withdrawal of the suit by this Court has resulted in completely washing away the findings earlier recorded by the Senior Civil Judge through his judgment dated 31-10-1960, which were maintained by the learned District Judge as well as the learned Single Judge of the Lahore High Court through judgments dated 6-5-1964 and 26-3-1980 respectively, is not apt. To determine this aspect, Order XXIII, Rules 1 and 2, C.P.C. Is reproduced, which is as under:-- "(1) 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." Along with the same, it is appropriate to reproduce section 97 of the Code of Civil Procedure, 1859, which prior to the promulgation of Code of Civil ' Procedure, 1908, catered the similar situation. The same was in the following words:-- "If the plaintiff at any time before final judgment satisfies the Court that there are sufficient grounds for permitting him to withdraw from the suit, with liberty to brink a fresh suit for the same matter, it shall be competent to the Court to grant such permission on such terms as to costs or otherwise as it may deem proper."
A reading of the aforesaid two provisions demonstrates that the words "some formal defect" were not in the Code of 1859. Under the present law, for withdrawal of suit, it is necessary that the Court must be satisfied before allowing to withdraw a suit that there is some formal defect in the pleadings of parties, by virtue of which the suit may not proceed or there may be some other sufficient ground for the same.
The word "withdrawal" has been defined in the Black's Law Dictionary, Seventh Edition, as under:-- "Withdrawal. n.
1. The act of taking back or away; removal, withdrawal of consent.
2. The act of retreating from a place, position, or situation, withdrawal from the moot-court competition.
3. The removal of money from a depository, withdrawal of funds from the checking account.
4. Renunciation, withdrawal from the conspiracy to commit arson."
The principle underlying this provision for the withdrawal of the suit or abandonment of the same is that the law confers upon a person no rights or benefits which he does not wish to retain. The object is to permit the plaintiff/party to have a fair trial on merits in cases where the defects are of formal nature. Further it is not an absolute right and is subject to certain limitations based-on the principle that where third parties have acquired a right, there can be no withdrawal to their prejudice. This demonstrates that the party can disclaim any concession or right which he does not wish to retain. Any person can disclaim any right or benefit but adverse order passed by a Court of competent jurisdiction could only be done away with if the same is set aside.
It is a condition precedent for exercise of this power that the Court in order to grant such concession must be satisfied that the suit was likely to fail due to some formal defect or there are sufficient grounds for the exercise of the same. The defects should not go to the root of the case. It comes within the ambit of discretionary power, if aforementioned either of two conditions i,e, the formal defect or sufficient grounds are demonstrated and the Court is satisfied for the same. As already stated the withdrawal can only be allowed, if the defect is formal in nature and should not go to the root of the case. Reference is made to 1972 SCMR 205; Mrs. Rafiqa Iqbal Ahmad and others v. Muhammad Ali Hyder 1984 CLC 2886; Ch. Muhammad Ali and 3 others v. Sardar Muhammad KazimZ iauddin Durrani and 2 others 1999 CLC 1437. This Court had dealt the issue of withdrawal in a very lucid manner in an earlier case reported as Javaid Iqba lAbbasi & Company v. Province of Punjab and 6 others 1996 SCMR 1433 where it was held as under:- "9. It is true that under Order 23, Rule 1, C.P.C. The respondent No,3/petitioner had the right to withdraw his Writ Petition No,11880 of 1995 unconditionally at any time after its institution and the Court normally could not decline such prayer. It is, however, not correct to argue that the right to withdraw suit unconditionally under Order 23, Rule 1, C.P.C. Is absolute in nature and that under no circumstances the Court would refuse such prayer. The Court may decline the request for unconditional withdrawal of a suit/proceedings where the nature of suit/proceeding is such that both plaintiff and defendant may be entitled to relief in the case. For instance in a suit for administration, for a suit for accounts or a suit for partition of the property the plaintiff cannot claim absolute right to withdraw the suit unconditionally, if the defendants opposed the prayer. Similarly, in cases where the defendant after filing of the suit acquires a right in respect of the subject- matter of the suit, the plaintiff could not be allowed to withdraw the suit where the right acquired by defendant is likely to be defeated by withdrawal of the suit. In the case of Amjad RashidKhan Malik v. ShahidaNaeem Malik 1992 SCMR 485 this Court while considering the argument that the plaintiff has an absolute right under Order 23, Rule 1, C.P.C. To withdraw the suit at any time after its institution, repelled the contention, as follows:-- Order 23, Rule 1 confers a right in the plaintiff to withdraw the suit at any time after the institution against all or any of the defendants. He can withdraw or abandon the entire or part of his claim.
However, this general rule will not apply in cases where a preliminary decree has been passed or where in pursuance of such a decree a third party interest has been created which shall be adversely affected. In such circumstances the right to withdraw the suit cannot be exercised without the consent of such third party. In Hulas Rai Baijnath v. K.B. Bass & Co. Ltd. AIR 1963 Allahabad 368 it was held that in the absence of a preliminary decree or award of compromise, obviously it is open to the plaintiff to withdraw the suit. In Sirajuddin v. Mst. AmtualRauf PLD 1977 Karachi 933, it was observed that although the plaintiff cannot be forced to withdraw the suit but 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 suit would affect the rights 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.
4, It is, thus, clear that under Order 23, Rule 1, C.P.C. The plaintiff does not have a right to withdraw the suit at his own free will affecting the rights of the defendants and also the rights of third parties which might have been created by or arising from the orders passed or proceedings taken in the suit."
It was further held in the above case that the withdrawal would not be allowed if it results in perpetuating a fraud or injustice. The Court may in such circumstances decline the petitioner to withdraw the suit. The Court may also in appropriate cases where it comes to the conclusion that the purpose of withdrawal of proceeding is only to prevent the Court from passing an order undoing a wrong or an injustice done to party or the withdrawal would deprive the Government or a public functionary to receive or recover the public dues, or the withdrawal would otherwise defeat the ends of justice, decline the prayer for withdrawal.
It is to be appreciated that the order granting permission to withdraw a suit is not a decree. It neither deals judiciously with subject-matter of the suit nor gives any reason for setting aside a decree passed by a Court of competent jurisdiction after recording evidence. Therefore, it cannot have the effect of setting aside decrees and order of Courts below which remained intact after appeal of the petitioners was dismissed by this r Court after having become infructuous. The permission to withdraw can only be granted respecting a matter which is pending before a Court.
What was pending before this Court, was the appeal of the petitioners bearing Civil I Appeal No,209 of 1988 which was dismissed vide order dated 8-6-1991 by this Court as having become infructuous. It is also reflected from the judgment dated 26-3-1980 of the High Court rendered in the first round of litigation that an application under rule 1(2) of Order XXIII, C.P.C. Was made for the withdrawal of the suit during the pendency of R.S.A. No,36 of 1964 which was not allowed and the learned Single Judge gave sound reasons for the same. It would be appropriate to reproduce those reasoning's which are as under: "5. Learned counsel on his behalf initially expressed their intention to withdraw the suit without a condition, but realizing that the judgment and the decrees passed against the appellant would in no circumstance be washed off on account of such withdrawal, they pressed into service the application made by them under Rule 1(2) of Order XXIII, C.P.C. They referred to a substantial number of case-law but they could not show that by the withdrawal of the suit they would be successful in doing away with the effect of the judgments and decree passed by the two Courts against the appellant.
6. Where the Court is satisfied that a suit must fail by reason of some formal defect or 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. The expression 'formal defect' connotes defects of various kinds not affecting the merits of the case. The rule requires that the Court must be satisfied that the suit must fail by reason of some formal defect, otherwise the mere objections raised by the defendant are not sufficient for making an application under the rule. A misjoinder of a party may in some cases be a good cause for withdrawing the suit, but the defect, in the instant case, is not such which would result in the decision of the case against the appellant.
Sheikh Shamas-ud-Din was not impleaded as a party in the suit, but because he was said to be a mere vendor, he was, therefore, not a person interested in the result of the suit, and thus not a necessary party, nor even a proper party. Both the two Courts have also held that the suit was not defective because of his non joinder as a defendant. Rule 9 of Order I, C.P.C. Provides that no suit shall be defeated by reasons of misjoinder or non-joinder of a party, and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. In the circumstances mere non joinder of Sheikh Shams-ud-Din, against whom nobody claimed any relief, did not have a status as party and would in no manner affect the decision of the case. The suit, therefore, cannot be allowed to be withdrawn with permission to file a fresh suit." This Court in its order dated 8-6-1991, while allowing the withdrawal of the suit, has not at all touched the aforementioned findings of the High Court where it was held that the withdrawal of the suit would not have the effect of doing away with the judgments and decrees passed by the two Courts below against the petitioners.
The Judicial Committee of the Privy Council, while upholding the determination of the High Court of Bengal, in a case reported as Robert Watson & Co. v. The Collector of Zillah Rajshahye, Dost Mahomed Khan Chowdhry, RaneeAnundomoye, and Horace John Abbot (1869) Vol. 13 M.I.A.
(Moore's Indian Appeals) 160, held that permission could only be granted to litigate the matter afresh and that was limited to certain circumstances/conditions which are as under:-- "There is a proceeding in those Courts (Courts of India) called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them" Patna High Court in a case reported as Debendra Chandra GhoshBahadurand others v.
ChaudhuriBandhuSahu and others ((LXI) 1.C.831) disallowed withdrawal of the suits out of which they arose by making reference to the case of Robert Waston& Co. v. The Collector of Zillah Rajshahye.Dost Mahomed Khan Chowdhry, RaneeAnundomoye, and Horace John Abbot (supra).
The learned Judge of the Patna High Court observed as under:- "I think that the contention must clearly succeed. Where evidence to meet the issues framed has been adduced by both parties and on these issues a decision has been arrived at and a decree has been passed, and that decree has been upheld on appeal, this Court on second appeal has no power to allow withdrawal of the suit to deprive the defendant of the advantage he has gained from the decision of the issues in his favour, Order XXIII, rule 1, will not give such power where once the suit has been decided and a decree has been passed."
Reference is also made to Mt. Deoki and others v. JwalaParasad, AIR 1928 Allahabad 679 and Muhammad AbulKashem v. SabdarMallik and others (PLD 1961 Dacca 129) where it was held that when an appeal was withdrawn simpliciter it has the effect of restoring the status quo ante, namely, the position was as if the appeal had not been filed. Thus, the decree of the Court below was left intact, for otherwise the withdrawal of the appeal, if it also amounted to a withdrawal of the suit would amount to an adjudication really of the suit itself on its merits. The order granting permission to withdraw, however, is not a decree in that sense and it cannot, therefore, be given any greater effect. It does not judicially deal with the subject-matter of the suit but merely recognizes authoritatively that the appellant does not wish to go on with his appeal. Thus withdrawal of the appeal does not and cannot also amount to a withdrawal of the suit itself.
This power cannot also be exercised if a third party as already stated had acquired a right out of the judgments impugned before the Court from which the withdrawal is sought. In the case in hand all the forums inclusive of the learned Single Judge of the Lahore High Court in the earlier round of litigation held that the proceedings under Article 172 of the Constitution for the escheatment of the disputed property be taken. A valuable right had accrued in favour of the Provincial Government under Constitutional mandate and the same could not have been frustrated by the withdrawal of the appeal. Reference to the case of Amjad Rashid Khan Malik v.
ShahidaNaeem Malik (1992 SCMR 485) in this regard has already been made in the preceding paragraphs. Reference is also made to the case of Haji Hakimullah v. Saghiruddin and 2 others (PLD 1975 Karachi 509) wherein a learned Judge of the High Court of Sindh after having exhaustive discussion had held that the contention that the suit if allowed to be with drawn with liberty to bring a new suit, it should be regarded as never brought and avails to no purpose is not correct. The admissions made by the parties in the earlier suit, according to him, would be admissible in evidence under the law in the subsequent suit. Reference is also made to the case of Mst.Noor Bhari and others v. Mapal Khan and others (1994 Law Notes 101) where it was held as under:-- '5. It is no doubt true that in view of the decision of the High Court given in Sarwar Bibi's case the very basis upon which the plaintiffs had come to the Court became non-existent. However, the question is whether the learned Additional District Judge was justified in permitting the plaintiffs to withdraw their suit. It may be stated that the granting of permission to a plaintiff to withdraw his suit is a matter falling entirely within the discretion of the Court. Of course, this discretion is to be exercised judicially and not in an arbitrary manner. There is also no doubt that in proper cases even an Appellate Court ought to exercise this power very sparingly, particularly when it has the effect of depriving the defendant of the benefit of the lower Court's adjudication in his favour. It must also be remembered that a plaintiff/appellant has no absolute right to ask for the withdrawal of his suit. Reference in this context is invited to Ashfaq Hussain v. BunyadHussain (AIR 1923 Oudh 252), GhazanfarHussain v. Ram Rattan Lal (20 IC 17), Debendra Chandra GhoshBahadur v.
ChaudhriBanhuSahu (61 IC 831). In fact in Debendra Chandra DhoshBahadur a view was expressed that Rule 1 of Order XXIII, C.P.C. Does not give any power to the Appellate Court to permit the withdrawal of a suit where once it has been decided and decree has been passed."
Apart from the above if the plea of the petitioners is accepted, it would amount to frustrating the age-old established principle that a person cannot get indirectly what he has failed to get directly.
The petitioners started litigation in the year 1952 claiming title to the disputed property. The trial Court after scanning the entire evidence rejected their claim. Said determinations were maintained by the learned First Appellate Court the learned Single Judge of the Lahore High Court. The petitioners have failed in getting the above determinations set aside by all the Courts below and now simply by withdrawing their appeal before this Court or for that matter withdrawing the suit would not frustrate/wash away the well-reasoned determinations of all the Courts. The decree passed in this case by the Courts below is binding on all the parties. The aggrieved party can only seek remedy against it by having a decree set aside on merits. A five lines order allowing withdrawal of the suit cannot be termed as a decision on merits or a judgment so as to nullify the judicial pronouncements of competent Courts. This Court while allowing withdrawal of suit had not at all dilated upon the determinations of the Courts below on merits. At the cost of repetition, it may be stated that the age-old principle is that what is not permitted to be done directly cannot be achieved through circumvention of law by indirect means. After losing the case right up to the level of the High Court the petitioners cannot be allowed to say that the effect of decided cases against them has been washed away simply by ecuring an order from this Court allowing them to withdraw the suit.
It is also to be appreciated that the claim of the petitioners in both these petitions over the ownership of the disputed property was rejected throughout. In the case of the petitioners in Civil Petition No,22-L of 2000 neither the owner nor the alleged special attorney Ghulam Ahmad appeared in any Court to verify the authenticity and genuineness of the power of attorney. The said power of attorney was produced for the first time before this Court and the learned Judges of this Court while dismissing suo motu review had taken note of this aspect when the title of the petitioners to the disputed property was not established. They had observed that the authenticity of the said power of attorney had not been substantiated. The order dated 19-11-1956 of the Member, Board of Revenue, on which reliance was placed while withdrawing the appeal was only qua the Mutation No,214 which was sanctioned in favour of the predecessor-in-interest of the petitioners Rukan-ud-Din. It is pertinent to mention here that the procedure for recording of a mutation is of summary nature. A mutation has to be proved through evidence and it has no evidentiary value of title unles the basic transaction is proved on the basis of which said mutation was sanctioned. The question of title, as already stated, was neither agitated nor could be taken into consideration before the Revenue forums. It has been held in the case of Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832) that a mutation by itself does not create any title and the person deriving title thereunder has to prove that the transferor did part with the ownership of the property, the subject of mutation was duly entered and attested. At the cost of repetition, it may be stated that the above said Mutation No,214 was based upon a sale deed, the authenticity of which had not been established by any forum. On the contrary, all the Courts have held it otherwise. The petitioners in Civil Petition No,22-L of 2000 cannot claim title to the disputed property simply on the basis of a mutation, particularly so when during the proceedings before the learned Member, Board of Revenue, the pendency of this very matter before the Civil Court was not disclosed. The dubious conduct demonstrated by the petitioners in Civil Petition No,22-L of 2000 would disentitle them to any relief from this Court. They secured the order from the Member, Board of Revenue on 19-11-1956 by concealment of facts and playing fraud upon the Courts. How can preference be given to the mutation over the Civil Court's decree which had held that the petitioners in both the petitions had failed to establish their right to the disputed property. Reliance in this respect is placed upon Muhammad and others v. Sardul (PLD 1965 (W.P.) Lah. 472), PirBakhsh represented by His Legal Heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), Muhammad Din v. Wazir Begum and others (1992 ALD 459) and Muhammad Sadiq through General Attorneyv. Khawaja Khalid Saeed, Chairman, Capital Development Authority, Islamabad and another (2001 CLC 569).
There is another aspect of this case which cannot be lost sight of that vthe petitioners in Civil Petition No,22-L of 2000 themselves took up the pleaof res judicata in the suit filed by the petitioners in Civil Petition No,84-L of 2000 placing reliance upon the determinations on merits in the earlier round of litigation. The plaint of the petitioners in Civil Petition No, $4-L of 2000, out of which the present petitions have emanated; was rejected at their initiation under Order VII, Rule 11, C.P.C. By placing reliance on the principle of res judicata. How can now the petitioners in Civil Petition No,22-L of 2000 turn round to say that those judgments had been washed away by the withdrawal of the suit by them when they withdrew their appeal from this Court Their stance is totally contradictory and amounts to blowing hot and cold at the same time. They got the plaint of the other side i,e, Alafud-Din petitioner in Civil Petition No,84-L of 2000 rejected by pressing the merits of the earlier case.
Furthermore, if the parties are allowed to do away with the judgments rendered against them by simple withdrawal of the suit without making formal order respecting setting aside of the decree of the subordinate Courts, it would give impetus to the adventurist who would enter the arena of litigation and having failed before all the forums ultimately withdraws the suit which would tantamount to completely frustrating the concept of justice. The judgments or decrees in such-like cases as the present one can only be set aside on merits. Both the petitioners failed to substantiate their title to the disputed land and the petitioners in Civil Petition No,22/L of 2000 simply on an order of sanction of mutation passed by the revenue forums cannot say that by the withdrawal of the suit the judgments qua title rendered against them lost all their force.
Resultantly, for what has been stated above, both the above petitions being without any merit are dismissed and leave refused.
Since the petitioners in both the petitions, as already stated, failed to substantiate their title to the disputed property and their endeavor is to perpetuate their illegal occupation by adopting different methods, we direct the Provincial Government to take immediate steps to take over the disputed land and utilize the same for some charitable purpose.
(Sd.)
JavedIqbal, J.
(Sd.)
Tanvir Ahmed Khan, J. FAQIR MUHAMMAD KHOKHAR, J.--- I had the privilege and benefit of reading the judgment authored by my learned brother Mr.Justice Tanvir Ahmed Khan, J. I agree with the reasons given (other than those dealing with the effect of withdrawal of the earlier suit by permission of this Court), and the conclusions drawn, by my learned brother that both thepetitions merit their dismissal and refusal of leave. Therefore, the same are dismissed and leave to appeal is refused.
2. However, I have formed somewhat different view as to the legal effect of withdrawal of the civil suit by permission of this Court to the petitioners (C.P. No,22-L of 2001). I have, therefore, recorded hereunder my separate opinion while doing so.
3. The provisions of sub-rules (1), (2) and (3) of Rule 1 of Order XXIII of the Code of Civil Procedure, 1908, are reproduced below for the sake of convenience:-- "1. Withdrawal of suit or abandonment of part of claim.--(1) At any time after institution df 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 fresh suit for the subject-matter of a suit or part of 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 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 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.
4. The power of the trial Court under Rule 1 ibid to allow a plaintiff to withdraw a civil suit and to file a fresh one is also exercisable, in the like manner, by an Appellate Court including the Supreme Court. See the cases of Ismail v. Fida Ali and another (PLD 1965 SC 634), Muhammad Shafi v. Nawab and others (PLD 1957 Lah. 648), Sheikh Muhammad Ramzan v. 1'4111lanamad Asghar Ali (PLD 1984 Lah. 230), BalidaKennayya and others v. ParagadaPapayya and another (AIR 1918 Madras 1287 (Full Bench) and Dayal Singh and others v. UttamKaur (1909 P.R. No,21). Under sub-rule (1) ibid, a plaintiff has an indefeasible right to withdraw his suit or abandon a part of his claim after institution of suit without the permission of the Court. In such a case, as provided by sub-rule (3) ibid, the plaintiff 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. However, the Court may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or part of claim where the conditions laid down by sub-rule (2) ibid are satisfied.
5. In the earlier round of litigation, the present petitioners who had lost their claim of title over the suit land throughout were allowed; by this Court, to withdraw their suit, with liberty to file a fresh one, by the following order dated 8-6-1991 passed in Civil Appeal No,209 of 1988:-- "After institution of the suit on 18-10-1952, the appellant got relief from the Member, Board of Revenue on 19-11-1956, therefore, the suit having become infructuous, the appellant would like to withdraw the suit with permission that if there is any interference in the rights of the appellant, the appellant shall have a right to sue. The appellant is allowed to withdraw the suit in the above terms. The appeal, being, thus, infructuous, is dismissed. No costs."
The order dated 8-6-1991 was re-examined by this Court in Suo Motu Review Petition No,3 of 1995, and was maintained by order dated 17-2-1997 with certain observations. It is, therefore, not proper in these proceedings to go behind the validity of order dated 8-6-1991 and to reopen the matter or to examine its propriety which has become past and closed transaction;
6. As a consequence of withdrawal of a civil suit with the permission of an Appellate Court, the judgment and decree of the Court below is wiped out unless the Court directs otherwise. The institution of a fresh suit pursuant to such an order is not barred as res judicata. Reference may be made to the cases of Bacharam Choudheri and others v. Purma Chandra Chatterji and others (AIR 1925 Cal. 845) (F.B.) and Balida Kummyya and others (supra) by Spencer, J. The Appellate Court may refuse such permission or may allow the withdrawal of a suit or appeal subject to such conditions as may be conceded just and proper. Rule 4 of Order XXIII, C.P.C. Also provides that nothing in the said Order shall apply to any proceedings in execution of a decree or order. After leave to withdraw a civil suit with liberty to file a fresh one has been granted by a competent Court rightly or wrongly, the Court trying a subsequent suit is not expected to enter into the question whether the earlier grant of permission was proper or not. A somewhat similar view was taken in the cases of Nirbheram Fatte Kummi v. SukhdeoKisumKurmi (AIR 1944 Nagpur 307), Raj Kumar Mahtom v. Ram Khelewan Singh (AIR 1922 Pat. 44 (F.B.) and HrideyNath Roy v. Ram Chandra (AIR 1921 Cal. 34 (F.B.)).
…and 18 more citing cases