THE HIGH COURT OF SINDH,
HCA No.04 of 2011
Present: Aqeel Ahmad Abbasi J.
Sadiq Hussain Bhatti J.
Appellant: Salehbhoy through LRs (In person)
Respondent No.1: M/s. Pak Maniar Investment (Pvt.) Limited through Mr. Zaki Muhammad, Advocate.
Respondent No.2 Mst. Khuda Dini wife of Adam Jokhio, through his Attorney Aaqil son of Adam
Respondent No.3 Province of Sindh through Mr. Saifuddin, Assistant Advocate General Sindh.
Respondent No.4&5 E.D.O. (Revenue) Karachi, through Mr. Ahmad Pirzada, Advocate.
Dates of hearing: 06.11.2012
Sadiq Hussain Bhatti, J : Appellants are aggrieved by order dated 08.12.2010, passed by the learned single Judge of this Court in Suit No.510/1996 (old Suit No.865/1986), whereby the suit was dismissed as withdrawn.
2. Brief facts of the case are that Respondent No.1 M/s. Pak Maniar Investment (Pvt.) Limited filed Suit No.865/1986, inter alia against one Salehbhoy for specific performance, declaration and injunction with the following prayers:
a) Specific performance against the defendants No.1(a), (b) and (c) for performing the contract in respect of Agreement of Sale and Partnership Deed dated 25.3.1979;
b) Declaration that Defendant No.2 and one Nungar S/o Bahawal (since deceased) or their legal heirs and relatives have no right or title in Survey No.647, 653 to 658, 581 and 582 Deh Thano Tappo Malir, Taluka and District Karachi East;
c) Further declaration against defendants No.4, 5 and 6 that they have no jurisdiction to hold an enquiry in the Record of Rights and execute the Decree passed on 25th May 1986 in Suit No.310/96 passed by VIII Civil and Family Judge Karachi (East);
d) Injunction restraining the Defendants from disturbing the possession and execution of the land project of the Plaintiffs and the Defendant No.1 or in any way doing any act of misfeasance or nonfeasance which could affect directly or indirectly the rights of the Plaintiffs and Defendant No.1;
e) Any other and/or better relief which this Honourable Court may deem fit under the circumstances to grant; and
f) Costs of the Suit.
3. During pendency of the suit, respondent No.1(a) to (c) moved an application under Order XXIII Rule 1 CPC, praying for unconditional withdrawal of the suit and vide order dated 08.12.2010 such application was allowed, the suit was dismissed as withdrawn and a cost of Rs.5000/- was imposed on respondent. The impugned order reads as under:
“Moin Maniar the Attorney of the plaintiff as well as his advocate, submit that they do not press this Suit No.510/1996 as the same has become infructuous and therefore, they withdraw this Suit. The defendant No.1(c) namely Saifuddin Salehbhoy submits that this Suit No.510/1996 is connected with another Suit No.1600/2001 therefore, the plaintiff party cannot withdraw their Suit.
Since the plaintiff party itself submits that their Suit has become infructuous, therefore, they cannot be prevented from withdrawing their Suit which could be withdrawn at any time as per Order XXIII Rule 1 CPC.
In the circumstances, Suit No.510/1996 (old Suit No.865/1986) is hereby dismissed as withdrawn, subject to cost of Rs.5,000/- to be deposited with Nazir of this Court for payment to the contesting defendant. However, the R&Ps of this Suit No.510/1996 shall remain tagged with Suit No.1600/2001.”
4. The above order has been challenged by the appellants through present High Court Appeal.
5. Appellant Saifuddin Salehbhoy appeared in person, argued that the learned single Judge was not justified in allowing the respondents to withdraw their suit as the same has adversely affected the valuable rights of the appellant. He also submitted that the learned single Judge lost sight of the fact that a compromise application was also pending, and if the orders would have been passed on such compromise, the interest of the appellants could have been safeguarded. He has further submitted that allowing withdrawal of the suit at this stage has in fact defeated the ends of justice. It has been further stated that the plaintiffs in Suit No.510/1996 (i.e. respondent No.1) have committed fraud and the Contempt of Court whereas suit land has been sold away by the respondent No.1 to its sister concern’s firm during the pendency of the suit. He further stated that the appellant in his written statement, filed in withdrawn suit, has set up his counter claim, whereby he submitted that since the appellant has lost suit land due to fraudulent act of the respondent No.1, therefore, the cost imposed should have been equal to the market value of the suit land and not mere Rs.5,000/-. In support of his contention, the appellant relied on the following reported cases:
(1) JAVAID IQBAL ABBASI & COMPANY versus PROVINCE OF PUNJAB and 6 others [1996 SCMR 1433]
(2) Sh. ABDUR RASHID through Legal Heirs versus EHSANULLAH and 5 others [1997 MLD 2996]
(3) Seethai Achi v. Meyappa Chettiar and others [A.I.R. 1934 Madras 337]
(4) Haji MUHAMMAD BOOTA and others versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB and others [PLD 2003 Supreme Court 979]
6. Conversely, the learned counsel for the respondent No.1(a) to (c) has vehemently controverted the submissions made by the appellant, and has supported the impugned order passed by the learned single judge. It has been argued that the application under Order XXIII Rule 1 CPC was moved before the learned single judge by the respondent No.1(a) to (c), seeking unconditional withdrawal of the suit, whereas, there was no factual or legal impediment for allowing such withdrawal in according with the provisions of Order XXIII rule 1 CPC. He also submitted that suit of the appellant is still pending and they can very well protect and claim their legal rights in accordance with law. He has also denied the allegations of fraud and the contempt and submitted that the same are besides being false are baseless. It has been prayed that the appeal be dismissed with costs. In support of his contention, the learned counsel for the Respondent No.1(a) to (c) has placed reliance on the following reported cases:
<![if !supportLists]>(1) <![endif]>KARAMAT ALI KHAN and another versus SARDAR ALI and 29 others [PLD 2001 Supreme Court (AJ&K) 30]
<![if !supportLists]>(2) <![endif]>Messers HINDUSTAN SANITARY & DRAINAGE WORKS versus SHABBIR BURHANI and 6 others [PLD 1992 Karachi 21]
<![if !supportLists]>(3) <![endif]>Malik MUMTAZ ALI versus PAKISTAN through Secretary, Refugees and Works, Government of Pakistan, RAWALPINDI and 3 others [PLD 1971 Lahore 395]
<![if !supportLists]>(4) <![endif]>RAFAQAT ALI versus GOVERNMENT OF THE PUNJAB through Punjab Highway Department, Lahore and 5 others [PLD 1998 Lahore 441].
<![if !supportLists]>(5) <![endif]>Sm. Saraswati Balal Samanta and others versus Surabala Dassi and others [AIR 1957 CALCUTTA 57 (V 44 C 15 JAN.)
<![if !supportLists]>(6) <![endif]>Indoor Subbarami Reddi and another v. Nelatur Sundararaja [A.I.R. 1916 Madras 575]
7. The learned A.A.G. as well as Mr. Ahmad Prizada, counsel for Respondents Nos.4 and 5 have also supported the impugned order and stated that the impugned order is just and proper and needs no interference. However, it has been contended by Mr. Ahmad Pirzada that if any contempt proceedings are pending, the same will continue till decided by the learned single judge.
8. We have heard the appellant and the learned counsel for the respondents, and have also perused the impugned order. It is an admitted fact that both the contesting parties i.e. the appellant as well as the respondent No.1(a) to (c) filed their respective suits for enforcing their civil rights. Both the suits were tagged together and the issues were framed, however, at a later stage, respondent No.1 i.e. the plaintiff in Suit No.510/1996 approached the Court with an application under Order XXIII Rule 1 CPC praying for the withdrawal of its suit unconditionally on the ground that the same has become infructuous. The learned single Judge allowed the request and dismissed the suit as withdrawn by imposing a cost of Rs.5,000/-. Now, the controversy which is required to be resolved by this Court is as to whether the plaintiff can withdraw his/her/its suit unconditionally at any stage at will or there are any restraint(s) imposed on the same. In case the latter proposition is correct then we will examine as to whether the learned single Judge was justified in allowing the plaintiff to withdraw the suit unconditionally or not.
9. To determine this aspect, it be advantageous to examine the provisions of Order XXIII Rule 1 CPC, which reads as follows:
“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) Whether 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 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.
10. From perusal of the provisions of sub-section (1) of Order XXIII Rule 1 CPC it appears that plaintiff can withdraw his/her/its suit at any stage of the proceedings against all or any of the defendants unconditionally. Whereas, from perusal of the provisions of sub-section (2) it appears that if withdrawal of the suit has been sought conditionally and with permission to file fresh suit, then such withdrawal of the suit depends upon the satisfaction of the Court and fulfillment of certain conditions.
11. Now, we will first examine the ratio decidendi of the judgments relied upon by the appellant in the instant case. In the case of Javaid Iqbal Abbasi & Company (supra) the facts were that Zila Council, Okara invited bids for grant of lease right to collect export tax on goods for the year 1995-96, the auction was held on 17.07.1995 in which 10 bidders participated and the highest bid of the appellant was recommended for acceptance, however, the Minister for Local Government rejected the bid and ordered for re-auction of the collection rights. However, subsequently, on the representation of the appellant the earlier order was recalled, the bid of the appellant was approved. Respondent No.3, one of the bidders, on whose representation, the order of cancellation of the auction was passed, challenged the subsequent order of the Minister, Local Government by filing Writ Petition No.11880/1995 in Lahore High Court. During the pendency of the petition another Petition bearing No.12516/1996 was filed by the respondent No.4, also one of the bidders, challenging the order of the Minister for Local Government, approving the bid of the appellant. When both these petitions came up for hearing together, Respondent No.3, who was petitioner in Writ Petition No.11880/1995 submitted an application for unconditional withdrawal of the petition. The learned Judge in chambers rejected the application for withdrawal of the writ petition in the following words:
“It is true that under Order XXIII Rule 1 CPC, the respondent No.3/petitioner had a right to withdraw his petition No.11880/1995 unconditionally at any time after its institution and the Court normally could not decline such prayer. It is, however, not correct to argue that the right to withdraw a suit unconditionally under Order 23, Rule 1 CPC is absolute in nature and that under no such circumstances the Court would refuse such prayer. The Court may decline the request for unconditional withdrawal of a suit/proceedings where nature of a suit/proceedings is such that both the plaintiff and defendant may be entitled for relief in the case. For instance in a suit for administration or a suit for accounts or a suit for partition of property the plaintiff cannot claim absolute right to withdraw the suit unconditionally, if the defendants opposed the prayer. Similarly, in cases where the defendant after filing of a suit acquires a right in respect of the subject matter of the suit, the plaintiff could not be allowed to withdraw the suit where the right acquired by the defendant is likely to be defeated by withdrawal of the suit. In case of Amjad Rashid Khan Malik v. Shahida Naeem Malik (1992 SCMR 485) this Court while considering the arguments that the plaintiff has an absolute right under Order 23, Rule 1 CPC to withdraw the suit at any time after its institution, repelled the contention, as follows:
“Order 23, Rule 1 CPC confers a right in the plaintiff to withdraw the suit at any time after the institution against all or any of the defendants he can withdraw or abandon the entire or part of his claim. However, this general rule will not apply in cases where a preliminary decree has been passed or where in pursuance of such a decree a third party interest has been created which shall be adversely affected. In such circumstances the right to withdraw the suit cannot be exercised without the consent of such third party. In Hulas Rai Baijnah v. K. B. Bass & Co. Ltd. AIR 1963 Allahabad 368 it was held that in the absence of a preliminary decree or award of compromise, obviously it is open to the plaintiff to withdraw the suit. In Sirajuddin versus Mst. Amtul Rauf PLD 1977 Karachi 933, it was observed that although the plaintiff cannot be forced to withdraw the suit but the Court has discretion to refuse the termination of the proceedings in cases where the defendant has acquired valuable rights or in cases where the plaintiff has sued in representative capacity so that the withdrawal of suit would affect the rights or in cases where the parties arrayed as defendants are also plaintiffs in the proceeding so that a decree in their favour must necessarily be passed if the suit culminates in judgment.
12. In the case of Sh. Abdur Rashid through Legal Heirs (supra) facts were that Respondent No.1 Ehsanullah filed a suit seeking declaration that he is owner of the suit land and the defendants have no concern with the same. Written statement was filed by the defendant, wherein a preliminary objection was taken by the defendant with the maintainability of the suit on the ground of non-joinder of necessary party, namely, Ali Muhammad. After recording the evidence the suit was dismissed vide judgment and decree dated 18.08.1989, which was challenged by the respondent Ehsanullah in appeal before the District Judge Dera Ismail Khan. To cut the matter short it may be stated that the case was remanded to the District Judge, Dera Ismail Khan, for decision afresh. The respondent No.1 Ehsanullah submitted an application for withdrawal of the suit with permission to file fresh one on the ground of some legal and formal defects in the plaint which was allowed vide order dated 09.02.1995. Against such order the petitioner Sh. Abdur Rashid filed Civil Revision No.60/1995, which was decided by learned Single Judge of Peshawar High Court as under:
“It is true that the plaintiff is vested with the powers to withdraw his suit at any time after its institution, but it is equally true that he does not have such right at his free-will affecting the right of the defendants and also the rights of the third party which might have been created by or arising from the order(s) passed or proceedings taken in the suit. Reliance in this respect can be placed on Amjad Rashid Khan Malik v. Mrs. Shahida Naeem Malik and others reported as (1992 SCMR 485). In identical situation, the august Supreme Court in an appeal arisen from a Constitutional Petition decided by this Court on 07.06.1974 had held that objection raised in the written statement for not impleading necessary party was an enough notice to the appellant and hence his appeal dismissed. Reliance in this context can be made to 1989 SCMR 506, titled Akhtar Ali Khan and another v. Settlement Commissioner Peshawar and 4 others.
13. In the case of Haji Muhammad Boota (supra) full bench of the apex Court has held as under:
“The principle underlying this provision for the withdrawal of the suit or abandonment of the same is that the law confers upon a person no rights or benefits which he does not wish to retain. The object is to permit the plaintiff/party to have a fair trial on merits in cases where the defects are of formal nature. Further it is not an absolute right and is subject to certain limitations based on the principle that where third parties have acquired a right, there can be no withdrawal to their prejudice. This demonstrates that the party can disclaim any concession or right which he does not wish to retain. Any person can disclaim any right or benefit but adverse order passed by a Court of competent jurisdiction could only be done away with if the same is set aside.
14. Since the facts in the case from Indian jurisdiction namely Seethai Achi (supra) are entirely different and distinguishable, therefore, we do not feel it necessary to dilate upon the same.
15. In the case of Javaid Iqbal Abbasi & Company (supra) the Court allowed the Petitioner to withdraw the petition for the reasons that the Minister of Local Government had already cancelled the auction and ordered for re-auction but such order was withdrawn. The petition was filed, challenging the grant of lease rights to the appellant in that case, which was subsequently sought to be withdrawn but the learned Judge disallowed the request on the ground of illegalities committed in the award of the lease rights. Similarly, in the case of Sh. Abdur Rashid (supra) a decree was passed, the Court declined to grant permission to withdraw the suit.
16. We have also gone through the case law relied upon by the learned Counsel for the Respondent No.1. In the case of Karamat Ali Khan (supra) it has been held that under sub-rule (1) of Rule 1 of Order XXIII CPC suit could be withdrawn at any time without prior permission of the Court, but under sub-rule (2) of the said Rule plaintiff could, with permission of the Court, withdraw from the suit with liberty to institute fresh suit, where the plaintiff did not desire to institute a fresh suit, he could withdraw his suit and permission to withdraw was not necessary. Object of rule 1 of Order XXIII CPC was to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. The plaintiff had the right to withdraw his suit whenever he desired, but he could not file a fresh suit on the same subject matter unless permission was sought from the Court for filing a fresh suit.
17. In the case of M/s. Hindustan Sanitary and Drainage Works (supra) High Court of Sindh has held as under:
“It has further been held that the plaintiff after filing of suit he may withdraw the same at any stage during the pendency of the suit. The embargo if any is provided in sub-rule (3) which lays down that in such case the plaintiff shall be liable for such costs as the Court may award and shall also be precluded from filing a fresh suit on same cause of action unless such permission has been granted to him under sub-rule (2). A plain reading of these 3 sub-rules of Rule 1, Order 23, CPC, shows that the plaintiff has the right to withdraw the suit unconditionally but in case he wants to bring a fresh suit he has to seek permission from the Court at the time of withdrawal. It also shows that plaintiff can be burdened with the costs of the suit only.”
18. In the case of Rafaqat Ali vs. Government of Punjab and others (supra), it was held by the division bench of Lahore High Court as under:
“In terms of Order XXIII, Rule 1(1) CPC the plaintiff was entitled to withdraw his suit/appeal or abandon his part of claim against all or anyone of defendants. Such right of plaintiff being indefeasible, no Court would have right to clog the same and keep unwilling plaintiff in arena of litigation. Where plaintiff had moved such application in Court, it had no option but to accede to his request, the plaintiff’s such right was, however, subject to two limitations. Firstly, that where plaintiff had withdrawn his suit or had abandoned part of his claim, he would be precluded from instituting any fresh suit in respect of same subject matter or same part of claim.”
19. In cases of Karamat Ali Khan, Hindustan Sanitary and Drainage Works and Rafaqat Ali Khan (supra) it was held that under Order XXIII, Rule 1 CPC, suit could be withdrawn by the plaintiff at any time without permission of the Court but he could not file a fresh suit on the same subject matter unless permission was sought for filing a fresh one.
20. In other case laws, relied upon by the learned counsel for the respondent No.1, same view has been taken which we have discussed in earlier case law.
21. Perusal of the above cited judgments relied upon by the learned counsel for the parties, reveals that it is a well settled principle that rights conferred on the plaintiff to withdraw from the suit at any time after its institution against all or any of the defendants is not unfettered and is subject to some limitations as under:
<![if !supportLists]>(i) <![endif]>The suit, nature whereof is such where both the plaintiff and the defendant may be entitled to the relief in the case.
<![if !supportLists]>(ii) <![endif]>Suit for administration will not be allowed to be withdrawn if there is an opposition from the defendant(s)
<![if !supportLists]>(iii) <![endif]>A Suit for accounts.
<![if !supportLists]>(iv) <![endif]>A suit where after filing of the suit the defendant(s) acquires a right in the subject matter of the suit and the same is likely to be defeated by withdrawal of the suit.
<![if !supportLists]>(v) <![endif]>Where plaintiff has filed a suit in a representative capacity.
<![if !supportLists]>(vi) <![endif]>Where grant of withdrawal will perpetuat injustice or fraud or deprive the Government of its dues.
<![if !supportLists]>(vii) <![endif]>A suit wherein preliminary decree or final decree has been passed.
<![if !supportLists]>(viii) <![endif]>A suit withdrawal thereof will affect the rights of third party created pursuant to the order passed or proceedings taken in the suit.
<![if !supportLists]>(ix) <![endif]>Where a suit filed by a trustee in which case a Court may transpose the defendant as a plaintiff and may proceed with the suit.
22. Now reverting to the fact of the case in hand, the respondent No.1 filed a suit for specific performance, declaration and injunction. On the other hand the appellants also filed a suit bearing No.1600/2001 before the learned single Judge of this Court for declaration, injunction, cancellation of documents, possession and mesne profit. A perusal of the prayer clause in the withdrawn suit shows that it does not fall in any of the above quoted categories so as to pass order for refusal of permission to withdraw the same. From the prayer clause of the two cross suits it appears that while the respondents seek implementation of the agreement between the parties, the appellants through their suit seek cancellation of the same. The prayer in the suit of the respondent is not of the nature where any right of the plaintiff or defendant in suit will be prejudiced.
23. After having examined the provisions of Order XXIII Rule 1 CPC and the ratio of the judgments as referred to hereinabove, we are of the view that in the instant case the respondent No.1 was within his right to withdraw the suit unconditionally, at any stage, where no permission was sought to bring a fresh suit with regard to same subject matter or the same cause of action. We do not find any error or illegality in the impugned order, which depicts correct legal position and does not require any interference by this Court.
24. However, before parting with this judgment, we may observe that if any contempt of Court proceedings are pending against the respondents before the learned single Judge, the same will continue to proceed independently, as the contempt of Court is a matter between the Court and the alleged contemnors.
Accordingly, the instant High Court Appeal is dismissed with no orders as to costs.
Nov. ___ 2012