MOULA BAKHSH vs MUHAMMAD ZAHID and another

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, C. J.---Leave to appeal has been sought by a plaintiff; against the dismissal by the High Court, of his Civil Revision which had arisen out of the permission to the petitioner to withdraw his suit at the first appellate stage but refusal to grant permission to re-file the same under Order XXIII of C.P.C.

2. ' Learned counsel has stated that essentially the reason for making an application for withdrawal of the suit was that inadvertently and by technical mistake the survey Khasra No, concerned; namely, 35/1 was mentioned in the plaint while it should have been Survey/Khasra No,

31. The application filed from the petitioner's side reads as follows:-- "APPLICATION UNDER ORDER 23, RULE 1, C.P.C. FOR THE WITHDRAWAL OF THE APPEAL AND THE SUIT NO.1/84 AS WELL, WITH PERMISSION TO FILE FRESH SUIT.

3. "In the above suit, it is respectfully prayed by the appellant named above, that this Hon'able Court may be pleased to allow the Appellant to withdraw his above Appeal as also his Suit No, 15/84 decided by the learned Civil Judge Hub, from which this Appeal has arisen, with permission, allowing the Appellant, to file fresh suit in respect of Khasra No,35/1, Mouza Berote, Tehsil Hub, Distt.

4. Lasbela, for declaration of Appellant's title and possession thereon and for the consequential reliefs, if any, since the said suit No, 15/84 was inadvertently filed mentioning therein that the Appellant had his hotel at Khasra No, 35/1, whereas, as was subsequently known, Appellant's hotel is situated at Khasra No, 31, and the appellant claims his old possession over Khasra No, 35/1 on the basis of materials other than his hotel. Hence withdrawal of present appeal and the suit, with permission to file fresh suit in respect of Khasra No,35/1 Berote, Hub, has become necessary.

5. "The Hon'able Court has power to allow withdrawal of the Appeal and the suit as well with permission to file fresh suit in view of: ' Sec. 107(2) C.P.C; PLD 1965 SC 634; PLD 1961 Dacca 844; PLD 1957 Lah.

6. 649.

7. ' Prayed accordingly."

8. ' Learned District Court allowed the petitioner's appllication with the following operative order:- "Appellant Moula Buz is present in person. Mr. Farooq Rashid Advocate is also present for respondents Mohammad Zahid and others. The appellant has moved an application under Order 23 rule 1 CPC for the withdrawal of the appeal and the Suit No, 15 of 1984 as well with permission to file fresh suit. The learned counsel for the respondent has no objection for the withdrawal of the appeal as well as Suit No, 15 of 1984. The application of withdrawal of the appellant is hereby accepted to the extent that appeal and Suit No, 15 of 1984 is withdrawn. ."

9. ' It would be seen that the above reproduced order while permitting the withdrawal of the suit and appeal, did not grant the permission to file a fresh suit. The petitioner filed a revision before the High Court and in the impugned order it has been held that the "suit did not suffer from any formal defect whereby same could reasonably fail on technical grounds. Thus in my opinion there was no reasonable ground for granting permission for filing fresh suit. Apparently there is no defect or error warranting the interference in the impugned judgment Although we do not agree with the learned Judge in the High Court that there was no technical defect for which the petitioner might have failed, learned counsel for the petitioner has raised legal contention that if there was no such technical defect as is referred to in the impugned judgment of the High Court, the learned District Court could and should have refused the withdrawal of the suit/appeal and could have decided the case on merits. He argued that once the permission to withdraw the suit was granted, it was necessary to grant permission to re-file the suit. The argument raised by the learned counsel has the support of a case decided by this Court reported as 'Karim Gul and another v. Shahzad Gul and another' 1970 SCM R 141. The relevant features of the above case were noted as follows:-- "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 diva Procedure the Court has to treat the application for the withdrawal of the suit and permission for bringing a fresh 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.

10. ' 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.

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

12. ' The question was resolved in the following law then laid down in the said case: "... ... 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. Lalita Roy PLD 1959 SC (Pak.) 287 where Munir, C.J. Pointed out the difference 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".

13. ' In the said case leave to appeal was not granted as order passed by the High Court therein was in accord with the view already expressed by the Supreme Court in this controversy and accordingly leave to appeal was refused with the observation that "the point of law has already been answered by this Court in the decision above referred to and since the impugned judgment of the High Court adopts the same view, although no reference is made to the said decision of this Court, we see no reason for granting leave in this petition which is, accordingly, dismissed".

14. ' In this case the High Court, it appears, was not properly assisted. If the two judgments of this Court in the case of Haji Abdur Rashid Sowdagar and Karim Gul and another would have been cited the results would have been different.

15. ' Faced with the aforestated situation the learned counsel for the caveator remained unable to show that the petitioner cannot succeed in this matter for the aforediscussed reasons.

16. ' We, accordingly, while converting this petition into appeal allow the same with the result that the application made by the petitioner/plaintiff on 11-7-1988 for withdrawal and refiling of the suit stands allowed. The order of the District Judge dated 11-7-1988 before the High Court would thus stand modified mutatis mutandis as including therein the permission to the petitioner/plaintiff to refile the suit.

17. ' There shall be no order as to costs.