ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Const. Petition No.D-973 of 2022

Date	Order with signature of Judge

1. For orders on office objection at flag `A`

2. For orders on CMA No.3523/2022

3. For hearing of main case

26-10-2023

Mr. Saeed Ahmed Bhatt, Advocate for the Petitioners

Mr. Ahmed Ali Shahani, Assistant Advocate General

.-.-.-. -.-.-.-.-.-.-.-.-

Muhammad Iqbal Kalhoro,J:- Petitioners filed a suit for Declaration, Cancellation of documents and Permanent Injunction before the Court of Senior Civil Judge-III, Khairpur in the year 2017. The issues were framed and the case was posted for recording evidence of the plaintiffs but on one excuse or the other the evidence could not be recorded. Finally on 02.09.2019, plaintiffs filed a statement seeking withdrawal of the suit subject to a condition of filing of some fresh suit on account of technical defects in the pending suit. Learned Senior Civil Judge-III, Khairpur, however taking into account the year of filing of suit: 2017, framing of issues on 31.05.2018, and failure of plaintiffs to lead evidence, declined permission to the plaintiffs to file fresh suit but allowed the withdrawal and disposed of the suit.

Being aggrieved by such order, the petitioners filed a Civil Revision Application No.43/2019 before the Additional District Judge-III, Khairpur, which has been dismissed by the impugned order dated 10.06.2022, observing that the impugned order dated 02.09.2019 is based on well reasons and there was no illegality or irregularity in it.

We have heard learned counsel for the petitioners and learned AAG. The private respondents despite notice have chosen to remain absent.

Learned AAG has conceded that the petitioners had sought conditional withdrawal of the suit subject to filing a fresh suit. The court was required to either allow the petitioners to withdraw the suit and accept the condition. Or if the court was not satisfied with the condition, it was required to dismiss the application and proceed with the matter. The trial Court had no jurisdiction to allow the withdrawal of suit but at the same time decline permission to the petitioners to file a fresh suit. The way learned Senior Civil Judge exercised jurisdiction is paradoxical / self-conflicting. The petitioners had not sought withdrawal of the suit but only upon acceptance of the condition. If the court was not satisfied with the condition, it had no jurisdiction to dispose of the suit as withdrawn.

In addition to above, it may be stated, reasons regarding failure of the petitioners to lead evidence would not provide any jurisdiction to the court to dispose of the suit by allowing its withdrawal. Order 17 CPC in this regard is very clear, if the plaintiff fails to lead evidence, then court on the basis of material available on record has to pass the judgment either decreeing the suit or dismissing it. Learned revisional court also failed to appreciate such fact and the inherent disqualification in the order dated 02.09.2019 and dismissed the revision application. The failure of the plaintiffs to lead evidence is not a ground to deny him permission to file the fresh suit, if he on that condition was seeking withdrawal of the suit. Either withdrawal as sought was to be allowed or not at all by the court. The court had no jurisdiction to decline the condition of filing fresh suit and allow the withdrawal of the suit at the same time.

In view of such discussion, we are not satisfied with the reasoning in support of findings and the way statement of the petitioners was dealt with and decided by both the Courts. Hence we set-aside both the orders dated 02.09.2019 and 10.06.2022 and remand the case to the Senior Civil Judge-III, Khairpur with directions to either allow the statement of the withdrawal filed by the plaintiffs in toto as sought or proceed with the matter in accordance with law. However, if petitioners wish to add any new ground for seeking withdrawal of the suit, they would be permitted to do so and their additional grounds would also be considered and decided in accordance with law.

The petition is accordingly disposed of.

JUDGE

Sulemen Khan/PA