MUHAMMAD SADIQ vs MUHAMMAD ISMAIL
The petitioner, a defendant in a civil suit for specific performance, sought leave to appeal against a Lahore High Court judgment that upheld a trial court order allowing the plaintiff to withdraw their suit with permission to file a fresh one. The petitioner argued that a valuable right had accrued to them because the plaintiff had failed to make up a deficiency in court fees, and that this right was improperly extinguished by the withdrawal order. The Supreme Court examined whether the withdrawal caused irreparable injury to the petitioner. The Court held that no valuable right had accrued to the petitioner because the period of limitation for the specific performance claim had not expired at the time the withdrawal was granted. Consequently, the petitioner had not suffered any tangible or irreparable injury. The Court affirmed that the trial court's discretion to allow withdrawal was properly exercised, as the plaintiff could reassert the claim upon payment of the proper court fee. Leave to appeal was refused.
- Does the withdrawal of a suit with permission to file a fresh one deprive a defendant of a valuable right if the limitation period for the claim has not yet expired?
- Can a court grant permission to withdraw a suit with liberty to file a fresh one when there is an outstanding deficiency in court fees?
- Does the failure to pay court fees within the allowed time create an accrued right for the defendant that prevents the plaintiff from withdrawing the suit?
- Order XXIII Rule 1, Code of Civil Procedure 1908
ORDER
1. SHAFIUR RAHMAN. J--The petitioner, defendant in a civil suit, seeks leave to appal against the judgment .Of the Lahore High Court dated 10 May, 1982 whereby a civil revision petition filed by him challenging the order of the Civil Judge whereby permission was granted to the plaintiff- respon--dent to withdraw the suit with permission to file a fresh one, was dismissed.
2. The respondent filed a civil suit on 2-12-1980 claiming specific perfor--mance of an agreement to sell immovable property dated 22nd September, 1980. It was according to the petitioner deficient in court-fee and the petitioner had not made up the court-fee within the time allowed. With--out disclosing the formal defect he asked for the withdrawal of the suit which was granted by the trial Court on 27-1-1981. The High Court rejected the civil revision petition on the ground that the permission to withdraw the suit was on payment of costs and made in presence of the party and his counsel.
3. Learned counsel for the petitioner has; in the first place, challenged the very presence of the party and his counsel at the time when the withdrawal was allowed. It has also been contended that a valuable right had accrued to the petitioner as the plaintiff-respondent I-ad failed to make up the deficiency in the Court fee and he could not be deprived of the right by permitting withdrawal with permission to institute a fresh suit on the same cause of action.
4. The petitioner's contention that a valuable right had accrued to petitioner is misconceived, for the period of limitation permissible for the specific performance of an agreement was still available when the Permission to withdraw. The suit was granted. The petitioner could on proper court being paid reassert the claim. In the circumstances, we find that the petitioner has not suffered anyth tangible or irreparable injury on account of permission to withdraw the suit. The petition has no merit and leave to appeal is refused.