ORDER SHEET

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Constitution Petition No. S-162 of 2022

(Muhammad Alim Shar Vs. Shahnawaz and Ors)

Date	Order with Signature of Judge

1. For order on office objection “A”.

2. For hearing of M.A.No.354/2022 (S/A).

3. For hearing of main case.

Petitioner:                               Through M/s. Ghulam Muhammad Barejo and Mushtaq Ali

Langah, Advocates.

Respondents No 1 to 3:          Through Mr. Ghulam Dastagir A. Shahani, Advocate.

Respondent No.6 to 12.          Through Mr. Abdul Waris Bhutto, Assistant Advocate

General, Sindh.

Date of hearing:                      02-05-2025 & 07-05-2025

Date of order:                         07-05-2025

O R D E R

Nisar Ahmed Bhanbhro J.- Through the instant petition, petitioner has challenged order dated 19.05.2022, (the impugned order) passed by the Court of learned District Judge, Kashmore at Kandhkot (“Revisional Court”), wherein Revision Application No. 17 of 2022 (Re: Shah Nawaz and others vs. Mohammad Alim and others) filed by Respondents No 1 to 3 was allowed and order dated 07.04.2022 passed by the Court of Learned Senior Civil Judge Kashmore(“Trial Court”) in Suit No 36 of 2022 Re Mohammed Alim Versus Shahnawaz and others was set aside.

2.         Facts in brief leading to this Constitution Petition are that petitioner/plaintiff filed Suit No.36 of year 2022 (Re: Muhammad Alim vs. Ali Nawaz and others) before “Trial Court” seeking Declaration, Mandatory Injunction, Permanent injunction, Possession and Cancellation of Document. During pendency of the suit,Petitioner/Plaintiff moved an application before “Trial Court” for conditional withdrawal of the suit that there were some bonafide mistakes and formal defects in the plaint, therefore he wanted to file a fresh suit. “Trial Court” granted the application for withdrawal of suit, leaving the petitioner/plaintiff at liberty to file a fresh suit, if he so desires. Trial Court without issuing notices and giving right of hearing to the Respondents No 1 to 3 decided the application on the very day of filing vide order dated 07.04.2022.   

3.         Respondents No 1 to 3 feeling injured of the order dated 07.04.2022 passed by “Trial Court”attacked the same by filing Civil Revision Application under section 115 CPC before Revisional Court. On notices Petitioner on notices appeared before “Revisional Court” filed objections and after hearing the parties, “Revisional Court” set aside the order dated 07.04.2022 in the following manner:

“In view of above stated facts and circumstances, I have no hesitation to hold that Trial Court has committed illegality and irregularity while passing impugned order dated 07.04.2022 which apparently calls for interference in Revisional jurisdiction before this Court and same is hereby set-aside accordingly. Civil Revision Application stands allowed accordingly. There shall be no order as to costs.”

Petitioner feeling aggrieved of the impugned order, filed this petition seeking indulgence of the Court to set aside the same, and allow him to proceed with the fresh suitinstituted before “Trial Court” on account of permission granted through order dated 07.04.2022.

4.                     M/s. Ghulam Muhammad Barijo and Mushtaque Ali Langah, Learned Counsel for the petitioner submits that the impugned order of “Revisional Court” is illegal, infirm, perverse, arbitrary and non-speaking, thus requires interference by this Court. He further contends that “Trial Court” granted permission to file fresh suit, consequently petitioner filed a fresh suit before “Trial Court”, since the order of Trial Court was acted upon before the filing of Revision Application, therefore Revision Application filed by Respondents No 1 to 3 became infructuous. He contended that Respondents were not prejudiced in any manner if Petitioner was allowed to proceed with fresh suit already filed before “Trial Court” he prayed for allowing this petition.

5.         Conversely Mr. Ghulam Dastagir Shahani, Learned counsel for the respondents No. 1 to 3 opposed this petition and contended that “Revisional Court” passed as well reasoned order, as the application filed by the petitioner did not fall within the ambit of sub-rule 2 (b) of Rule 1 of Order XXIII CPC, as for seeking withdrawal of suit with permission to file fresh, the petitioner was required to demonstrate sufficient cause, but Petitioner while withdrawing the suit did not assign any reasons for bringing a fresh suit, therefore, his suit ought to have been dismissed as withdrawn without granting permission to file a fresh suit. He further contended that order passed by “Revisional Court” was final in nature and writ was not maintainable.  He prayed for the dismissal of the petition.

6.         Learned Assistant Advocate General, Sindh contended that matter involved interests of private parties and Government interest is not involved.Order passed by this Court will be complied with.

7.         Heard Learned Counsel for parties. Perused the material available on record with their able assistance.

8.         Petitioner filed an application seeking conditional withdrawal of the suit, which was granted on the same day, through a short order, without specifying any reasons for withdrawal of the suit. The provisions of Rule 1 Order XXIII grant a discretion to the plaintiff to withdraw the suit or abandon the part of his claimat any stage of the suit. This unqualified right can be exercised at any stage but permission to withdraw is always at the satisfaction of the Court, meaning thereby that the plaintiff may withdraw the suit after bringing a rationale reasoning to get the Court satisfied. For ease of reference the Rule 1 ofOrder XXIII is reproduced 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 a 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.”

9.         The provisions of law codifiedthrough Sub-Rule (1) of Rule 1 of Order XXIII, C.P.C. are substantive as well as procedural. These provisions recognize the absolute right of plaintiff to file and to withdraw his suit "at any time".On exercise of this unqualified right, when a plaintiff requests the court to dismiss the suit as withdrawn, this provision of law casts a duty upon Courtto satisfy that the withdrawal of suit should be conditional or unconditional and whether the plaintiff has exercised this right properly or improperly. On being satisfied the Court may pass an order granting permission to withdraw the suit, if the suit is dismissed as withdrawn unconditionally, the plaintiff would be precluded from bringing a fresh suit on the same cause and subject and if withdrawal is conditional subject to filing a fresh suit, the plaintiff may bring a fresh suit subject to the law of limitation. The Procedural law envisages that the plaintiff may withdraw his suit to his discretion but such withdrawal in any manner may not injure the rights of other parties, therefore, this withdrawal has beensubjected to the satisfaction of the Court. Withdrawal of Suit conditional or unconditional shall be followed by certain limitations imposed in itself by this provision of law (order XXIII CPC). This vested right of withdrawal of suit or part of claim is free from conditions, as codified in Rule 1 of Order XXIII CPC wherein the withdrawal of the suit or claim has been left purely at the discretion of plaintiff. The unqualified right does not in any sense empower plaintiff to exercise it anywhere, any time and without keeping in mind the possible consequences. The qualified or discretionary right is always exercised keeping in view the consequences and peculiar characteristics of future happenings. While examining the appropriateness of the exercise of absolute right and un-conditional power of the plaintiff to withdraw a suit, court cannot limit the exercise of such right to circumvent, abridge or destroy the right that the statute itself grants to plaintiff. The Courts, therefore, in all such cases recognizing plaintiffs absolute right are required to examine the exercise of this discretion so that the rights of other parties may not be affected, or the withdrawal in any manner defeats the cause of justice. The intention of legislature keeping this right subject to the satisfaction of the Court was to regulate the exercise of such absolute right for the balanced administration of justice. Therefore, the Court cannot grant the permission of withdrawal of suit or abandonment of the claim in a casual manner, the withdrawal has to be granted after applying judicial mind, and keeping in view that withdrawal in any manner would not defeat the cause of justice.

 10.      Careful examination of the application dated 07.04.2022 filed by plaintiff reflects that withdrawal of the suit was sought conditionally to bring a new suit on the pretext that there were certain formal defects in the plaint. Such formal defects were not disclosed in the application, butthe Trial Court granted application filed by the petitioner/plaintiff as prayed, without hearing other side, or getting satisfied that the application fulfilled the conditions set forth in Sub Rule 2 of Rule 1 of Order XXIII CPC, which from face of it offended the fundamental rights of the Respondents No 1 to 3, asto fair trial enshrined under Article 10-A of the Constitution. Trial Court even did not require the plaintiff / petitioner to disclose those formal defects, to examine that the defects were curable and could be rectified by invoking the provisions of Rule 17 of Order VI CPC through amendments in the plaint. The petitioner/plaintiff had sought indulgence of Court for cancellation of registered documents which was a time related cause and limited the filing of suit within specified time. But Trial Court did not apply its judicial mind and allowed the application in a very casual manner, without assigning any reasons or examining the plaint to ascertain the nature of defects necessitating filing of fresh suit, thus the order passed by Trial Court lacked application of judicious mind, thus was untenable under the law.

11.       Honorable Supreme Court of Pakistan in the case of Muhammad Anwar (decd) through L.Rs. and othersVersus Essa and others reported in  P L D 2022 Supreme Court 716 has been pleased to hold as under:

“8.  In the like manner, Order XXIII, Rule 1, C.P.C., which allows the plaintiff to withdraw his suit or abandon part of his claim, empowers the Court to allow such withdrawal with permission to file a fresh suit. However, such permission is to be granted by the Court after satisfying itself and recording reasons that unless such permission is allowed, the suit would fail by reason of some formal defect. The Court can also allow such withdrawal with permission to file a fresh suit in case where the Court is of the view that there are other sufficient grounds for allowing plaintiff to withdraw his suit with the permission to file a fresh suit. A case law study shows that the suit may be allowed to be withdrawn in a case where the plaintiff fails to implead necessary party or where the suit as framed does not lie or the suit would fail on account of misjoinder of parties or causes of action or where the material document is not stamped or where prayer for necessary relief has been omitted or where the suit has been erroneously valued and cases of like nature. It is always to be kept in mind that where such defect could be remedied by allowing amendments, the Court should liberally exercise such powers but within the parameters prescribed by Order VI, Rule 17, C.P.C. Besides while exercising powers under this provision the Court must identify the defect and record its satisfaction that the defect is formal and does not go to the root of the case. It is also to be kept in mind that such withdrawal would not automatically set-aside the judgment and decree which has come against the plaintiff unless such judgment and decree is set-aside by the Court after due application of mind. In the instant case, the suit was concurrently dismissed by the Courts after having been found barred by law/time, therefore, the High Court had no power to allow withdrawal of the suit with the permission to file a fresh unless it had reversed the concurrent findings on the question of limitation. Even otherwise, if permission is granted for filing a fresh suit under Order XXIII, Rule 1, C.P.C., then, pursuant to Order XXIII, Rule 2, the plaintiff is bound by the law of limitation in the same manner as if the first suit had not been filed, therefore, no fresh cause of action would accrue from the date when such permission was granted by the Court. Reference is made to the cases of Muhammad Saeed Bacha and another v. Late Badshah Amir and others (2011 SCMR 345). In these circumstances, the second suit filed by the plaintiff was barred by the principle of res-judicata.”

12.       The Respondents No 1 to 3 filed revision application seeking reversal of the order passed by Trial Court to the extent of grant of permission for filing of fresh suit. Revisional Court in the impugned order though made certain observations which impliedly lead to an inferencethat theorder of Trial Court to the extent of granting permission to file fresh suit was not sustainable but Revisional Court set aside the impugned order in totality.Since, the respondents No.1 to 3 did not challenge the order passed by Revisional Court which manifested that they were satisfied with the same. The order of Revisional Court resulted in revival of the original Suit No. 36 of 2022 filed by the petitioner/plaintiff at the stage where it was dismissed as withdrawn. Contention of Learned Counsel for Respondents No 1 to 3 thus appears to be correct that Trial Court exercised its discretion without applying judicial mind and allowed the application in an arbitrary manner thus order dated 07.04.2022 was not within the premise of law and rightly set aside by “Revisional Court.”

13.                   The petitioner has challenged the impugned order passed by the Revisional Court in writ jurisdiction of this court under a notion that the order dated 07.04.2022 has been modified by the Revisional Court and his suit stands dismissed as withdrawn unconditionally. It is not the case,careful perusal of the impugned order reveals that the order of Trial Court has been set aside in totality,therefore, Suit No.36 of 2022 filed by the petitioner/plaintiffstands restored to the position, it was on the said date, when dismissed as withdrawn. Revisional Court while passing the impugned order has discussed all the aspects of case, there does not appear any illegality or infirmity in the impugned order that may warrant interference by this Court under its writ jurisdiction. Perusal of plaint of new suit which filed by plaintiff as a consequence of order dated 07.04.2022 revealed that it was not a case of filing fresh suit, but it was a case for seeking amendment in the pleadings which can be sought under order VI Rule 17 CPC at any stage of the proceedings. The plaintiff/ petitioner even may bring such amendments in the pleadings by filing appropriate application in suit No 36 of 2022 which will also grant a right to defendants to file written statement.

14.       For what has been discussed hereinabove, I find no infirmity or illegality in the impugned order, thus no case for indulgence of this Court is made out to exercise its discretion in its writ jurisdiction conferred through article 199 of the Constitution. Since parties are under litigation since year 2022 and proceedings in the suit are under halt due to pendency of instant petition, therefore this petition is being disposed of in following terms, however with no order as to the costs:

i.          The Suit No 36/2022 Re Mohammed Alim Verus Shahnawaz and others shall be deemed to be pending, where the petitioner shall be at liberty to file a fresh application under Order XXIII Rule 1 CPC or an application under Order VI Rule 17 CPC seeking amendment in the pleadings, as the case may be, if so advised.

ii.         The learned trial Court shall accordingly receive an application for amendment of the pleadingsor withdrawal of the Suit and proceed therefrom.the Trial Court will decide the same after giving a due notice to the parties.

iii.       The application under Order VII Rule 11 CPC filed by the Respondents / defendants shall be deemed to be pending before the Trial Court and decided in accordance with law.

iv.        The plaint of new suit on revival of original suit shall stand returned, the plaintiff may bring that plaint in the shape of amendments if so desired.

v.         The learned trial Court shall decide all the pending applications within a period of two months after receipt of this order.

vi.        The suit shall also be finally decided within a period of Ten months from the date of this order if it proceeds on merits. Any of the parties may file application(s) thereto to take steps necessary to facilitate such decision by the Court.

Office to send copy of the order to Learned Trial Court for compliance.

                                                JUDGE