Mrs. RAFIQA IQBAL AHMAD and another vs MUHAMMAD ALI HYDER

' This Revision Petition has been filed by the Applicants/the defendants against the order, dated 12th May, 1983, passed by the learned IInd Senior Civil Judge, Karachi, whereby he allowed the plaintiff to withdraw the suit with liberty to institute a fresh suit.

2. The grievance of the applicants/the defendants is that the learned trial Court allowed the application, filed under O.XXIII, rule 1 of C.P.C. Permitting the plaintiff to withdraw the suit and file a fresh suit in the absence of the defendants and without any notice of the said application to them.

It was ocntended by Mr. Z. U. Ahmed, Advocate for the applicants that his clients were entitled to be heard before the passing of the impugned order.

3. The provisions of O.XXIII, rule 1 of C.P.C. Came up for consideration in the case of Abdul Rashid Sowadagar v. S.M. Lalita Roy PLD 1959 SC 287, wherein the following observations made being relevant are reproduced here:- "Rule 2 provides that in any fresh suit instituted on permissions granted under rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. It will be noticed on a perusal of sub-rules (1) and (2) that whereas under sub-rule (1)- the plaintiff may withdraw his suit at any stage of the proceedings and without an order of the Court, under sub-rule (2) he has to obtain the permission of the Court for withdrawal and the Court's own power to permit withdrawal is limited to the instances specifically mentioned in clauses (a) and (b)."

' It was further observed:- "The withdrawal is complete the moment an order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal to permitted. But sub-rule (2) expressly states that in granting the permission the Court may impose "such terms as it thinks fit."

4. A perusal of the above principles laid down by the Honourable Supreme Court would show that certain rights flow from the order passed by a Court under 0. XXXIII, rule 1(2), C.P.C. And that before the Court passes the order it has to be satisfied as to the existence of the specified conditions. In such circumstances, therefore, a defendant would be entitled to be heard if any application is moved by the plaintiff for withdrawal of his suit with permission to institute a fresh suit.

' In the view taken as above, I am fortified by the judgment given by Mr.Kaikaus, J. (as he then was) in the case of Mst. Fatima v. Sardara PLD 1956 Lah.474. The fact of the said case were that the plaintiff made an application before the trial Court for the withdrawal of his suit permission to file a fresh suit on the plea that there were certain defects 'in the plaint. The said application was granted by the trial Court in the absence and without any notice to the defendant. The said order was, therefore, challenged by the defendant before the High Court. The learned High Court in exercise of its revisional jurisdiction set aside the above order for the reasons (1) that the said order was passed without notice to the other party and (ii) the order did not show that the learned Civil Judge had applied his mind at all as to whether a particular defect constituted a good basis for his order.

5. I have gone through the record and find that the impugned order permitting the plaintiff to withdraw the suit with liberty to institute afresh suit was passed by the learned Civil Judge in the absence of the defendants and without any notice to them. The order thus passed was in obvious violation of principle of natural justice which according to the settled law not only applies to judicial proceedings but extends to all proceedings by whosoever held which may affect the person or property or other right of the parties concerned in the dispute. Accordingly the order passed by the trial Court cannot be sustained.

6. No other point was urged at the hearing of this revision petition.

7. The upshot of the above discussion is that the impugned order permitting the plaintiff to withdraw the suit with liberty to institute a fresh suit cannot be sustained and the same is accordingly set aside. Consequently the suit shall be deemed to be pending and the application made under O.XXIII, rule 1 of C.P.C. Shall be heard afresh and disposed of by the learned trial Court according to law after notice to the parties.

' The parties are left to bear their own costs.