Mst. MAROOF JAN And 2 Others vs YAQOOB And 4, OTHER

Mst. Marnof Jan and her two minor daughters filed a suit for declaration to the effect that on the basis of family partition land measuring 19 kanals 16 marlas bearing khasra numbers 711 and 688 situated in village Kasaki Kallen has fallen to their Hissadari ownership alongwith defendant No.4 and that mutations 1885 and 1886 attested on 4-6-1988 on behalf of defendant No.1 in favour of defendants and 5 are illegal, unauthorised and based on fraud and collusion She also sought a permanent injunction to be issued against defendants --respondents.

2. The suit was contested by defendants-respondents and finding the parties at variance on a numher of issues including issue No.5 as to whether the suit is hit by the principle of res judicata, the learned civil Judge Ist Class, Abbottabad accorded such evidence as was produced before him by the parties in support of their respective pleadings and granted a decree in favour of the petitioners---plaintiffs as prayed for.

3. In appeal the learned Additional District Judge, Abbottabad vide his impugned judgment dated 14-5-1985 remanded the case back to the trial Court to give a decision afresh on issue No.5. Hence this revision petition.

4. Defendants-respondents did not appear despite substituted service and as such were placed ex parte1, however, heard Malik Fazal Hussain, learned counsel for the petitioners and also perused the record of the case with considerable degree of care.

5. It is contended on behalf of the plaintiffs petitioners that the learned trial Court had corrrectly decided issue No.5 on point of fact as also on point of law and that the impugned order of the learned Additional District Judge has proceeded on wrong premises in that while the position of the parties before both the learned lower Courts, regarding the earlier suit having been dismissed as withdrawn with permission to file a fresh suit, was undisputed, the law relevant thereto was not section 11 of the Code of Civil Procedure but Order 23 Rule 2 ibid. He further contended that the order of remanding the case to the learned trial Court was not in conformity with the provisions of Order 41 Rule 23 and in fact is violative of Order 23 Rule 2 C.P.C.

6. I have given my serious consideration t-3 the matter in issue. It appears that when the matter was reagitated before the learned District Judge, he eventually arrived at a conclusion that the issue has not been determined ill correct perspective of the statement made by the learned counsel for he plaintiffs-petitioners in the earlier suit and thus the issue needed to be decided afresh.

7.A reference to the judgment of the learned trial Court reveals that issue No.Sdecided in the following terms: "During the course of argument the learned counsel for the defendant referred to the civil suit No.220/1 of 1980 between the parties. The file of the said civil suit was also requisitioned from the General Record Room. The last order of that suit perused. The relevant portion is given under:- Accordingly application accepted. Instant suit dismissed as withdrawn with the permission of bringing fresh suit at the cost of Rs.100. The file be consigned to the Record Room after completion.

From the perusal of above last order as mentioned above, it is clear that the plaintiffs' suit was dismissed as withdrawn with the permission of bringing fresh suit, hence I hold that the present suit is not hit by the principle of res judicata. Issue is decided accordingly".

8. Prima-facie, this situation seems to me beyond a reasonable comprehension as to what decision precisely the learned Additional District Judge wanted the trial Court to give. For, a reference to Order 23 Rule 2 C.P.C. Indicates that withdrawal of a suit with permission to bring a fresh one, means to permit a plaintiff to present a fresh plaint, inasmuch as when a suit is allowed to be withdrawn with leave to bring fresh suit under the said provision of Code of Civil Procedure, it has to be regarded as never brought. Nor is it available any more for any purpose and parties are relegated exactly to the same position which they occupied before the suit was brought. At the same time, by obtaining the leave to file a fresh suit. a plaintiff does not seem to lose his remedy altogether.

9. In fact, the learned appellate Court should have noticed a difference between a suit withdrawn simpliciter and a suit withdrawn with permission of Court to file a fresh one. In the case of former, a second action on the same subject is barred while, in case of latter, neither a fresh suit, on the same subject, is barred by doctrine of res judicata nor the plaintiff is precluded to bring a fresh suit to enforce his right.

10. In the instant case, I find that the earlier suit was withdrawn not only with the permission of the trail court but also on payment of cost of Rs.100 which, according to the learned counsel for the petitioner, had been duly paid on filing the present suit,

11. In my considered opinion, therefore, if the petitioner has brought a second suit in exercise of her right to claim the property in question, such right could not be denied to her.

12. In this context of the matter I tend to agree with the learned counsel for the petitioners and have no hesitation in holding that the impugned judgment of the learned Additional District Judge is ill- founded and is violative of Order 23 Rule 2 of the Code of Civil Procedure and as such cannot be sustained.

13. Resultanty I allow this revision petition, set aside the impugned judgment of the learned Additional District Judge and am constrained to remand the case back to him for deciding the appeal on merits after hearing both the parties. The appeal shall be decided, under intimation to the Additional Registrar of this Court, positively within two months of the receipt of the file. The, office is directed to return the files to the learned Additional District Judge, Abbottabad forthwith.