MUHAMMAD YAR Versus MUHAMMAD AMIN

MIAN SAQIB NISAR, J. ---Respondents-pre-emptors claiming their right (of pre-emption) on the basis of the tenancy succeeded in their cause before the revenue (trial) Court. The appeal of the petitioners (vendees) failed and this remains to be the position in the revision of the petitioners, which was dismissed by the Board of Revenue. These orders were challenged by the petitioners through a civil suit which was pending when an application was moved by them for the withdrawal of the same (the suit), however, with the request for the permission of the Court to be granted to the petitioners, to file a writ petition before the High Court enabling them to challenge the same judgments and decrees concurrently passed against them in the revenue hierarchy. Upon this application, though the suit was dismissed simplicitor as withdrawn, but according to the learned counsel, by necessary implication it shall be presumed that the permission to file the fresh suit was granted (Note: however, this is not the correct factual position as shall be explained later in the succeeding part of this judgment). Be that as it may, after the dismissal of his suit as withdrawn vide order dated 14-10-2006, the petitioners filed a constitutional petition (Writ Petition No. 5441 of 2006) on 16-10-2006 challenging the same judgments/decrees of the revenue forums going against them, in which out of the arrayed respondents, admittedly Muhammad Amin, respondent No.1 (in the writ petition) was dead, at the time when the writ was initiated. Two questions, thus arose before the learned High Court; one, if a petition against a dead respondent is validly instituted and thus competent and maintainable in law; second, when express permission to file the constitution petition was not granted by the learned Civil Judge, seized of the matter, if the bar contained in Order XXIII, Rule 1(1), C.P.C. shall be attracted, or otherwise to the noted writ petition. On both these points the petitioners have lost before the learned High Court vide impugned judgment, wherein it has held that the petition is a nullity having been filed against a dead respondent; besides, the bar of the noted order/rule was/is duly attracted to the writ.

2. Mr. Muhammad Shahzad Shaukat, learned counsel for the petitioners, has argued that there were more than one respondents, in the constitution (writ) petition thus the petition as a whole cannot be held to be nullity, rather it was validly instituted against the respondents, who were alive, therefore, in such a situation though it was defective, in nature, but the defect would be curable and rectifiable by bringing on the record the legal heirs of the deceased respondent; reliance in this regard has been placed on the cases reported as Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others (PLD 1969 Lahore 880), The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82), Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others (PLD 2003 Lahore 615) and Ch. Muhammad Tufail Khan alias Tufaul Muhammad through Legal Representatives v. Zari Taraqiati Bank Limited through Branch Manager (PLD 2007 Lahore 180). On the second proposition, it is argued, that when the trial Court has not specifically refused the permission, for the filing of a fresh suit and dismissed the suit simply as having been withdrawn, it should be inferred, presumed and implied that the permission to file a fresh suit on the basis of the same cause of action was granted by the Court, thus in such a situation, the bar contained in Order XXIII, Rule 1(1), C.P.C. shall not attract to the subsequent suit, reliance in this behalf is placed on the cases reported as S. Nisar Ali v. Feroze Din Rana and another (1969 SCMR 933), Karim Gul and another v. Shahzad Gut and another (1970 SCMR 141), Tehsil Council Rajanpur through Nazim v. Additional District Judge, Rajanpur and 11 others (2005 MLD 1597) and Absar Hussain v. Syed Ahmed Qadri (2005 CLC 1616).

3. Heard. Attending to the first question, the legal position by now is quite settled and explicit, in that, where a suit/lis is against only one defendant/respondent of the case, undoubtedly it shall be invalidly instituted being against a sole dead person (defendant)and shall be a nullity in the eyes of the law as a whole; it shall be a still born suit/lis; an altogether dead matter, which cannot be revived; it shall, thus not merely be a defect which can be cured, rather fatal blow to the cause. However, the position shall be different where the lis is initiated against more than one defendants/respondents and out of them only one or few are dead, while the other(s) is/are alive. In such a situation, it shall be a validly initiated suit/lis in respect of the respondent(s), who are alive, but invalid qua those, who are dead. To cater for such a situation, it has been held in Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others (PLD 2003 Lahore 615):--

"Obviously, if a suit has been filed against the only defendant, who was dead at the time of the institution, such suit shall be still born, non-existent, and a nullity in the eyes of law, therefore, it could not be merely defective and thus, could not be revived by impleading the legal heirs of the deceased defendants. The plaintiff in such a situation, subject to law, may have the option to bring a fresh suit against the heirs on the basis of the same cause of action. But, this rule shall not be applicable in a case, where the suit has been instituted against more than one defendants and one of them was dead at the relevant time. The suit shall not be nullity in totality, but would be validly instituted against the living defendants, however, it would be defective qua the deceased party, which defect shall be curable by the plaintiff bringing on record the heirs of the deceased defendant. To support this view, reliance can be placed on the following judgments:--

Prim Pala Mul-Narain Mal v. Fauja Singh (AIR 1926 Lahore 153).

Roop Chand v. Sardar Khan and others (AIR 1928 Lahore 359).

Ghulam Qadir Khan v. Ghulam Hussain and others (AIR 1937 Lahore 794).

Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others (PLD 1969 Lahore 880), and

The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82)"

The above is the apt and correct exposition of law and such judicial opinion of the Lahore High Court is upheld and approved in its letter and spirit and should be taken to be the view of this Court. Therefore, we are constrained to set aside that part of impugned judgment, which is contrary to the law enunciated in the noted dictum (PLD 2003 Lahore 614 supra).

4. As far as resolving the proposition about the effect and the bar contained, regarding the institution of a fresh suit, as envisaged by Order XXIII, Rule 1, C.P.C. is concerned, it seems expedient to reproduce the said provision, which reads as below:--

"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.

(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) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others."

From the clear language of the above, it is vivid and manifest that the noted rule mainly comprises of two parts; sub-rule (1) entitles the plaintiff of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any one of the defendants, at any stage of the proceeding and this is his absolute privilege and prerogative (Note: except in certain cases where a decree has been passed by the Court such as in the cases pertaining to the partition of the immovable property etc.). And where the plaintiff has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant(s) and this bar is absolute and conclusive, which is so visible from the mandate of sub-rule (3). However, sub-rule 2 (a)(b) is/are a kind of an exception to the sub-rules (1) and (3), in that, where a plaintiff wants to file a fresh suit after the withdrawal of his pending suit on the basis of the same cause of action about the same subject matter and the same defendant(s), he shall then be obliged to seek the permission of the Court in that regard; however such permission shall not be granted as a matter of right or as a matter of course/routine, rather the judicial conscious of the Court should be satisfied that, if the permission is not given the said suit shall fail on account of any formal defect, (Note: for the present what is a 'formal defect' is not a moot point therefore, this aspect is not being touched herein) or that there are other sufficient grounds for allowing the plaintiff to withdraw the suit with a permission to institute a fresh suit; in respect of "sufficient grounds" no hard and fast criteria can be laid down and it depends upon the facts of each case, whether a case in that regard is made out or not. However, it is the legal requirement that where the plaintiff is asking for the permission of the Court to file a fresh suit, in his request in that behalf, he must elucidate and explain to the Court the reason(s) for the withdrawal, justifying for the permission of the Court. Likewise, the Court while allowing or disallowing the permission is duty bound to advert to the reasons propounded by the plaintiff and to pass a speaking order assigning reasons for its conclusion meeting the objective requirement of rule of 'satisfaction' as is envisaged by sub-rule (2). If the permission however is being refused, the suit should not then be dismissed as withdrawn, because the plaintiff in such an eventuality may review his stance and then not press for his request of withdrawal at all, because otherwise he may have to face the Bar and the preclusion of filing a fresh suit, which disability/ bar he may not like to incur and might like to continue with his same suit. In the other eventuality, where the Court allows the requisite permission, the order in that behalf must spell out the objectivity test of 'satisfaction' so that it can be gauged and judged that the request of the plaintiff for withdrawal was/is not tainted with an oblique and mala fide motive; it is not meant to cause harm and prejudice to the defendant(s) and put him in disadvantageous position; and the request is not motivated to misuse the authority of the Court and abuse the process of law. The noted aspects are relevant to be kept in view by the court while granting the permission and the order in that behalf shall not be whimsical and against the settled norms of justice.

5. Be that as it may, the important question is:-what shall be the position where the Court does 'neither expressly grant the permission nor has refused the same, but simply orders 'DISMISSED AS WITHDRAWN'; however, no reasons are assigned, the request of the applicant for the withdrawal and seeking permission are also not adverted to. The various dicta of the superior courts have attempted to meet such a situation, as in the case reported as S. Nisar Ali v. Feroze Din Rana and another (1969 SCMR 933), this Court while dealing with the issue about the withdrawal has held as below:--

"The petitioner now seeks special leave to appeal and it is contended on his behalf that implied permission is not sufficient, for, permission in such cases must be express permission. In support of this contention he has also relied upon two decisions from the Rangoon High Court. But we do not consider this fit case for granting special leave to appeal upon such a technical objection. It seems clear that what the plaintiff in the first suit intended was to reserve his right to bring a subsequent suit for commission and the Court also was minded to give him that permission. In the circumstances, the mere omission of the Court to mention in so many words that permission to bring a fresh suit was being given does not, in our opinion, render the second suit incompetent."

In the judgment reported as Tehsil Council Rajanpur through Nazim v. Additional District Judge, Rajanpur and 11 others (2005 MLD 1597); it has been held:-

"The only requirement of law is that a prayer must have been made by the plaintiff whether in writing or verbally for the said permission and then the Prayer is to be considered by the Court. The said order would clearly show that a detailed statement was made by the learned counsel for the plaintiff that he wants to withdraw the main civil suit for permanent injunction with permission to file a fresh suit for declaration and possession and the learned counsel present for the opposite party expressed no objection and this was followed by the order "dismissed as withdrawn." In my able opinion such an order need not be expressed and can be implied from the attending circumstances as observed by the Hon'ble Supreme Court of Pakistan in the case of S. Nasir Ali v. Feroze Din Rana and another (1969 SCMR 933). I also draw support from the observations of Mr. Justice Saeeduzzaman Siddiqui (as the Hon'ble Chief Justice then was) in the case of Pakistan Industrial Development Corporation v. Pakistan through Secretary, Ministry of Finance Islamabad and another (PLD 1984 Kar. 1). The observations appearing at page 6 of the report are as follows:--

"In our view in the absence of an express order by the Court granting permission to file a fresh proceedings while allowing withdrawal under sub-rule (2) of rule 1 of Order XXIII, C.P.C. it will necessarily follow that such a permission has been granted by the Court or otherwise the Court while allowing withdrawal in such a case cannot refuse to grant permission."

To somewhat similar effect are the observations of the Hon'ble AJ&K Supreme Court in the case of Raja Bashir Ahmad Khan v. Azad Government and another (1998 CLC 213). It was held while relying upon the case of Karim Gul and another v. Shahzad Gul and another (1970 SCMR 141) that the Court can accept or reject both the prayers and that the Court cannot withhold the permission to bring a fresh suit while allowing withdrawal of the suit."

In Karim Gul and another v. Shahzad Gul and another (1270 SCMR 141), it has been held:--

"On appeal, however, the Additional District Judge of Mardan came to a contrary conclusion. He was of the view that permission could not be granted to withdraw the suit while refusing permission to bring a fresh suit, as the two were indivisible. The order of the trial Court was, accordingly, reversed and the suit for possession was decreed. In second appeal a learned Single Judge of the High Court, after reviewing a number of decisions, came to the conclusion that under sub-rule (2)(b) of rule 1 of Order XXIII of the Code of Civil Procedure the Court has to treat the application for the withdrawal of the suit and permission for bringing afresh suit on the same cause of action as one and indivisible. It must either reject or accept both the prayers in such an application. It is not open to it to allow the withdrawal of the suit and yet refuse permission to institute a fresh suit in respect of the same subject-matter.

The learned Single Judge was also of the view that in the circumstances the learned Civil Judge had acted without jurisdiction in refusing permission to bring a fresh suit and, therefore, his order of the 6th of October 1960, was a nullity in the eye of the law, as it was made without jurisdiction.

This judgment has been upheld on Letters Patent Appeal by a short order dismissing the appeal in limine.

The defendants in the suit now seek special leave to appeal and it is contended on their behalf that a question of law of some general importance has been raised which should be examined by this Court. Learned counsel also urges that there is some conflict of decisions on this point in the High Courts, but it appears to us that the view taken by the High Court finds support from a decision of this Court in the case of Haji Abdur Rashid Sowdagar v. S. M. Lolita Roy (PLD 1959 SC (Pak.) 281) where Munir, C. J. pointed out the differences between sub-rules (1) and (2) of rule 1 of Order XXIII of the Code of Civil Procedure, and opined that under sub-rule (2) "the withdrawal is complete the moment the order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted". To such an order of withdrawal the provisions of sub-rule (3), it was further pointed out, do not apply, they being restricted to a withdrawal under sub-rule (1) of rule 1 of Order XXIII."

Upon the survey of the above cited (quoted) case-law, it is hereby enunciated, that where the plaintiff has applied for the withdrawal of his suit or has sought the abandonment of his claim or a part thereof, with the permission of the Court to bring a fresh suit, it is within the authority of the Court obviously with the parameters of sub-rule 2(a)(b) to either decline such request or allow the permission. In the eventuality of refusal the suit should not be dismissed simpliciter, rather the request for permission alone be turned down and the suit should continue, thus obviously the plaintiff shall have a right, to choose his further course of action and to decide whether he should withdraw the suit or not. In the other eventuality, there does not seem any problem except that the Court has to record its reasons justifying the permission, which in any case shall be so recorded in either of the eventuality as afore-stated. However, the problem is faced where the request is not declined in express and clear words, yet the suit is 'dismissed as withdrawn' without recording the reasons; though such an order' shall be bad for failure to assign the reasons and if not assailed on that ground by the other side it shall attain finality, but in the situation it should be implied, considered and deemed that the Court has found it to be a fit case for the permission and has granted the plaintiff permission to file a fresh suit, because this is the saver course, which should be followed in the interest and promotion of justice, otherwise serious prejudice shall be caused to the plaintiff who shall have to face the bar of sub-rule (3) and shall be left in a flummox.

6. Now coming to the facts of the instant case and evaluating whether the noted principle(s) is/are applicable and attracted hereto, it may be mentioned that though in his application, the petitioner did mention that he should be permitted to withdraw the suit with an object to file a writ petition, but the order dated 14-10-2006, which was passed on that application reads as below:--

From the above, it seems, when the application was taken up by the Court, the counsel appearing for the petitioners for whatever reasons it may be, did not press the application, may be that the permission was being declined by the Court and he promptly and immediately decided to change his course of action and the strategy and take resort to simple withdrawal of the suit; but the fact remains that the counsel in clear and unequivocal terms pleaded to the Court and got his statement recorded, that the petitioners would not like to pursue the suit and would like to withdraw. This is a withdrawal simpliciter as envisaged and covered by the provisions of Order XVIII, Rule 1(1), C.P.C., without there being any nexus and recourse to sub-rule (2)(a)(b). Thus, in view of the above peculiar circumstances of this case, the petitioner could not file a fresh civil suit to challenge the same decision/verdicts of the Revenue Courts through which their pre-emption suit was discarded.

7. The argument of the learned counsel for the petitioners that the learned counsel appearing for the petitioners had no authority to make the statement and to withdraw the suit simpliciter, rather could only pray for the withdrawal with a permission to file a fresh suit as was envisaged by the application and, therefore, such statement being un-authorized would have no binding effect upon the petitioners' right, suffice it to say that being conscious of the order dated 14-10-2006, which primarily is founded upon the statement of their counsel, the petitioners till date made no attempt to challenge the same, neither in the High Court nor in the memo of the present petition this plea has been set-forth as a ground; the petitioners never ever questioned the authority of his counsel in the making of such statement, therefore, the petitioners at this point of time cannot wriggle out of the effect of such statement and to build up a case on different premise by taking a somersault.

8. The ancillary question, which may arise in the matter also is, if the bar of Order XXIII, Rule 1, C.P.C. shall also be attracted to and shall prevent the petitioners to invoke the constitutional jurisdiction of the High Court vesting in it under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. While dealing with the proposition, this court in the context of applicability of section 12(2), C.P.C. in the orders passed in its constitutional jurisdiction has held in the case reported as Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171):--

"It is well-settled that the provisions of the Code of Civil Procedure are applicable to Constitution petitions filed in the High Court. Section 12(2), C.P.C. being a part of it will be applicable. In this connection the next point for consideration is whether in view of the fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C. could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad PLD 1991 SC 197, such application can be filed in the Court which passed the final order. The final order in the present case was passed by the High Court and therefore the application filed by the appellants there was competent."

This view was followed in the judgment reported as Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa (1999 SCMR 1555). In Ardeshir Cowasjee and others v. Karachi Building Control Authority and others (PLD 2004 SC 70), wherein it has been categorically held that "provision of Civil Procedure Code could be resorted to in the Constitutional jurisdiction except where they were specifically excluded". The proposition has been exhaustively dealt with in a full bench judgment of this Court reported as Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein while examining, whether the provisions of Civil Procedure Code could be resorted to for the purposes of review of an order/judgment passed by the High Court under Article 98 of the Constitution (the relevant Constitution of that time), it was held that "a proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114". Thus, it is quite settled by now that the High Courts while exercising their jurisdiction under Article 199 of the Constitution in the matters pertaining to civil nature can validly and duly resort to the provisions of Civil Procedure Code, which shall be attracted and applied until and unless such application has been excluded by law.

9. In the light of what has been stated above, we are of the candid view that the present withdrawal was not sought by the petitioners in terms of sub-rule (2)(a)(b) of Order XXIII, but the suit was specifically under sub-rule (1) and, therefore, the petitioners could not file the writ petition. Therefore, this petition has no merits and is hereby dismissed. Leave refused.

MWA/M-1/SC Petition dismissed.