Muhammad Aslam Vs ASJ Shakargarh etc

Stereo.HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

W.P. No.8607 of 2023

Muhammad Aslam v.

Addl. District Judge, Shakargarh and others

JUDGMENT

Date of hearing 27.4.2026 Petitioner by Ch. Zulfiqar Ali Muazzam, Advocate.

Respondent Ch. Muhammad Ashraf Jalal, Nos.3 to 6 by Advocate.

Rasaal Hasan Syed, J. Through instant petition orders dated 06.5.2022 and 16.1.2023 of the courts below have been called into question.

2.Petitioner instituted a suit for declaration and cancellation of mutation of gift bearing No.65 dated 11.1.2021 with consequential relief of perpetual injunction against respondent Nos.3 to 6. Stance taken in the plaint was that petitioner and respondents were real brothers, petitioner was 73 years old and owner-in-possession of agricultural land measuring 232 kanals 15 marlas, khata and khatauni No.09/11 situated in the revenue estate No.652 of village Khasan Wala, Tehsil Shakargarh, District Narowal of which he had come into title through sale duly incorporated in the revenue record on 27.5.2015. He let out his land to Abdur Rasheed son of M. Ibrahim Gujjar resident of village Karan Wali, Tehsil Shakargarh, District Narowal for a term of five years. On expiry of lease period, it was extended till 10.6.2023 for a period of three years. On 15.4.2017 the petitioner was blessed with a son, namely, Muhammad Ahmad; and being an aged person he requested the

defendants to join him in the proceedings of alienation of property in favour of his son Muhammad Ahmad through gift. On 11.1.2021 petitioner and defendants appeared before the Land Record Centre, Shakargarh, where the petitioner deposed as donor for transfer of property in favour of his son who was a minor but in connivance with the revenue staff, mutation No. 65 dated 11.1.2021 was entered fraudulently in favour of respondents of which the petitioner did not have any knowledge. In April 2021 it was claimed by the petitioner that he got notice in a civil suit titled Shamim Akhtar v. M. Aslam, etc. and on perusal of the plaint he was shocked to learn that a mutation was illegally claimed by the defendants as owners of land on the basis of gift. In this backdrop petitioner instituted a suit for declaration to the effect that the alleged mutation No.65 was a fabricated, void ab initio and false document which be cancelled and permanent injunction be granted as consequential relief. In the course of pendency of suit, a “sulah nama” was filed in the court along with an application for withdrawal of suit with permission to file a fresh one. In the prayer clause it was specifically mentioned that “in view of the compromise dated 2.5.2022 the suit may be dismissed as withdrawn and permission to file fresh one, may be granted”. Application was taken up on 06.5.2022 which was not the date of hearing in the suit, instead on the application the case was taken up in the presence of plaintiff and his counsel and no one was present from the side of defendants/respondents. Statement of plaintiff was recorded and, thereafter, the suit was dismissed as withdrawn. Though the application for withdrawal of suit with permission to file fresh one was filed but there was no mention of that fact in the order which was silent about the permission of filing fresh suit or refusal thereof. The order was challenged in revision petition which was dismissed by

learned Addl. District Judge, Shakargarh vide order dated 16.1.2023 holding that the Trial Court rightly dismissed the suit and there was no illegality therein.

3.Stance of the petitioner in this constitutional petition is that the application for withdrawal of suit was conditional with permission to file fresh suit, if need be, and the courts below illegally dismissed the suit as having been withdrawn without mentioning the grant of permission to file fresh suit and in case the court did not intend to grant permission then the suit could not be dismissed and that the petitioner ought to have been afforded the opportunity to review his contention to withdraw the suit which having not been done the impugned orders suffer from serious illegality. Reference was made to the case of Muhammad Aqil through legal heirs v. Mst. Shabban Bibi through legal heirs and 3 others (2013 CLC 659) wherein while dealing with the objection to the maintainability of civil suit without specific permission to file fresh one, it was observed to the effect that mere omission of the court to mention in so many words that permission to bring a fresh was being given did not render the second suit as incompetent:

“19. Learned counsel also raised a legal objection regarding maintainability of the second suit filed by the respondents No.1 and 2 on the ground that no such permission was granted by the Court. The application under Order XXIII rule 1(2) CPC is available at page 29 of the file, which reads as under:

“It is prayed on behalf of the plaintiff that this Honourable court may be pleased to grant permission to withdraw the present suit to file another fresh suit before the competent court having jurisdiction in view of the lease deed submitted by the defendant along with his written statement in respect of the suit property” (emphasis is supplied).

On the above application learned V-Civil Judge, Karachi West passed the following order:-

“Suit is disposed of as withdrawn with no order as to costs”

20.From the above quoted application for withdrawal of the suit, particularly from the portion underlined, it is crystal clear that the intention of the plaintiffs was clear that they want to file another suit. Thus, if permission to file fresh suit was not given in so many words would not be fatal to the case of the plaintiffs/respondents No.1 and 2. In the case of S. Nisar Ali (supra), the Honourable Apex Court observed that “It seems clear that what the plaintiff in the first suit intended was to reserve his right to bring a subsequent suit for commission and the court also minded to give him that permission. In the circumstances, the mere omission of the Court to mention in so many words that permission to bring a fresh suit was being given does not, in our opinion, render the second suit incompetent”. Similar is the position in the present case. Therefore, the suit was not incompetent merely because the learned Court omitted to mention that permission to file fresh suit is granted as the intention of the plaintiffs was clear from the contents of the application for withdrawal of the suit”.

Reference may also be made to Muhammad Yar (deceased) through L.Rs and others v. Muhammad Amin (deceased) through L.Rs and others (2013 SCMR 464) wherein it was observed that:

“4. As far as resolving the proposition about the effect and the bar contained, regarding the institution of a fresh suit, as envisaged by Order XXIII rule 1 CPC, is concerned, it seems expedient to reproduce the said provision, which reads as 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 thins 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.Whether 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 the 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.

From the clear language of the above, it is vivid and manifest that the noted rule mainly comprises of two parts; sub rule (1) entitles the plaintiff of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any one of the defendants, at any stage of the proceedings and this is his absolute privilege and prerogative {Note: except in certain cases where a decree has been passed by the Court such as in the cases pertaining to the partition of the immovable property etc}. And where the plaintiff has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant(s) and this bar is absolute and conclusive, which is so visible from the mandate of sub rule (3). However, sub rule 2(a)(b) is/are a kind of an exception to the sub rule (1) and (3), in that, where a plaintiff wants to file a fresh suit after the withdrawal of his pending suit on the basis of the same cause of action about the same subject matter and the same defendant(s), he shall then be obliged to seek the permission of the Court in that regard; however such permission shall not be granted as a matter of right or as a matter of course/routine, rather the judicial conscious of the court should be satisfied that, if the permission is not given the said suit shall fail on account of any formal defect. [Note: for the present what is a “formal defect” is not a moot point therefore, this aspect is not being touched herein] or that there are other sufficient grounds for allowing the plaintiff to withdraw the suit with a permission to institute a fresh suit, in respect of “sufficient grounds” no hard and fast criteria can be laid down and it depends upon the facts of each case, whether a case in that regard is made out or not. However, it is the legal requirement that where the plaintiff is asking for the permission of the Court to file a fresh suit, in his request in that behalf, he must elucidate and explain to the Court the reason(s) for the withdrawal, justifying for the permission of the court. Likewise the Court while allowing or disallowing the permission is duty bound to advert to the reasons propounded by the plaintiff and to pass a speaking order assigning reasons for its conclusion meeting the objective requirement of rule of “satisfaction” as is envisaged by sub rule (2), if the permission however is being refused, the suit should not then be dismissed as withdrawn, because the plaintiff in such an eventuality may review his stance and then not press for his request of withdrawal at all, because otherwise he may have to face the bar and preclusion of filing a fresh suit, which disability/bar he may not like to incur and might like to continue with his same suit. In the other eventuality, where the court allows the requisite permission the order in that behalf must spell out the objectivity test of “satisfaction” so that it can be gauged and judged that the request of the plaintiff for withdrawal was/is not tainted with an oblique and mala fide motive, it is not meant to cause harm and prejudice to the defendant(s) and put him in disadvantageous position and the request is not motivated to misuse the authority of the Court

and abuse the process of law. The noted aspects are relevant to be kept in view by the court while granting the permission and the order in that behalf shall not be whimsical and against the settled norms of justice...

5 ... Upon the survey of the above cited (quoted) case-law, it is hereby enunciated that where the plaintiff has applied for the withdrawal of his suit or has sought the abandonment of his claim or a part thereof, with the permission of the court to bring a fresh suit, it is within the authority of the Court obviously with the parameters of sub rule 2 (a)(b) to either decline such request or allow the permission. In the eventuality of refusal the suit should not be dismissed simpliciter, rather the request for permission alone be turned down and the suit should continue, thus obviously the plaintiff shall have a right, to choose his further course of action and to decide whether he should withdraw the suit or not. In the other eventuality, there does not seem any problem except that the court has to record its reasons justifying the permission, which in any case shall be so recorded in either of the eventuality as afore stated. However, the problem is faced where the request is not declined in express and clear words, yet the suit is “dismissed as withdrawn” without recording the reasons, though such an order shall be bad for failure to assign the reasons and if not assailed on that ground by the other side it shall attain finality, but in the situation it should be implied, considered and deemed that the Court has found it to be a fit case for the permission and that granted the plaintiff permission to file a fresh suit, because this is the saver course, which should be followed in the interest and promotion of justice, otherwise serious prejudice shall be caused to the plaintiff who shall have to face the bar of sub rule (3) and shall be left in a flummox”

Rule in “Doctor Raza Muhammad Khan v. Principal, Ayub Medical College, Abbottabad and 3 others (2004 CLC 1511) may also be referred to wherein it was observed as under:

“8. In view of the survey of case-law referred above and on the analysis of Order XXIII rule 1 CPC and further by making reference to 17 CWN 862 Ajant Sing. vs. F.T. Christian we observe that it is an elementary rule of universal application and founded upon plainest principle s of justice that a judicial order which possibly affect or prejudice any party cannot be made unless such party has been afforded an opportunity to be heard. This is merely an instance of the application of the maxim audi alteram partem. It is also a visible feature of this case that the learned trial court has failed to give any reason for allowing withdrawal of the suit and accordingly permission to bring a fresh suit on the same cause of action. Thus in the ultimate analysis on the aforementioned facts and circumstances and the interpreted position of Order XXIII rule 1 CPC, we are obliged to hold that the order of the learned Senior Civil Judge dated 19.6.1998 having been passed in sheer violation of the provisions of law is not sustainable. The same is therefore,

accordingly struck off. The outcome of the striking off the impugned order logically in our view is that the suit of the petitioner would be deemed pending before the trial court and as such the learned trial court would be legally required to proceed with the matter from the stage preceding the passage of the order of the withdrawal of the suit in case the petitioner wants to proceed with the suit. Needless to mention that the respondents would be at liberty to raise all legal and factual objections...”

4.Perusal of provision of Order XXIII, Rule 1, C.P.C. shows that the plaintiff in a case could withdraw the suit or abandon part of the claim and where the court is satisfied the suit must fail by reason of formal defect or there are “sufficient grounds” for allowing the plaintiff to institute fresh suit for subject-matter of the suit or part thereof, it may, on such terms as it thinks fit grant permission to withdraw the suit or abandon part of plaintiff’s claim with liberty to institute fresh suit in respect of subject-matter of the suit or part thereof. It also mandates that where the plaintiff withdraws from a suit or abandons part of the claim without permission such litigant shall be liable for costs as the court may award and shall be precluded from instituting any suit in respect of such subject-matter or a part of the claim. The concept contained therein was elaborately considered in the case supra wherein it was observed that where a plaintiff applies for withdrawal of the suit or has sought abandonment of the claim or part thereof with permission of the court to bring a fresh suit, it is within the power of court to proceed within the parameters of clauses (a) and (b) of Rule 2 of Order XXIII, C.P.C. to either decline the request or to allow the permission. However, in a case where the request is declined to bring fresh suit, the court should not dismiss the suit simpliciter. Rather the request for permission alone be turned down and suit ought to continue as the plaintiff has a right to choose further course of action and to decide whether the litigant should withdraw the suit or not.

5.Considering the facts of present case the plaintiff/petitioner had assailed the mutation of gift on plea of fraud and collusion with the revenue authorities. In the suit interim injunctive order was obtained and there was a cross suit also. Wheat-crop was sown by lessee/tenant on the land which was ripe for harvesting and, therefore, by intervention of the respectables parties agreed to withdraw the suit to enable harvest. Petitioner allegedly moved the application for withdrawal of suit in such context with condition of permission to file fresh suit. This is also mentioned in paragraph “3” and prayer clause of the application. The application was not taken up on the date fixed in the case but was taken up on an application when instead of disposing of the application the suit was disposed of without associating the defendants. It appears that the court was not conscious of the fact that the request for withdrawal of the case was conditional to the grant of permission for filing fresh suit as it was expressly mentioned in the order itself. There is no expression of any reason whatsoever for not granting permission to file fresh suit or any expression of declining the request. Rather order shows that the court was not cognizant of the fact that the request of withdrawal was conditional to the grant of permission for filing a fresh suit. It is also observed that the order is silent as to the fact that the court considered the question of existence or otherwise of the ground in clauses (a) and (b) of Rule 2 of Order XXIII, C.P.C. Even otherwise the permission to file a fresh suit could have been given after hearing the other party which was not present on that date. Rather the court instead of summoning the other party proceeded to dispose of the suit as withdrawn without mentioning any conscious expression of mind as to whether permission was granted or declined. It is manifest from the order that the court was not cognizant of the fact that the

application for withdrawal of suit was conditional to the permission for filing fresh suit which fact was vivid from the operative part of the application and also the prayer clause. In view of the rule supra, it was necessary for the court to express conscious application of judicial mind in the order to the effect that prayer for withdrawal of suit with permission to file fresh one was declined. Rather the order was completely silent on the question. In any case the court could not dismiss the suit if it did not intend to allow the permission to file fresh one. Considering the order of learned Civil Judge from any side it is manifest that the same lacked valid disposal of application and the impugned order being ambiguous, vague and non-speaking could not be approved. In result, same is declared to be illegal, without jurisdiction as such unsustainable in law.

6.Resultantly this constitutional petition is allowed, the impugned order dated 06.5.2022 of learned Civil Judge, Shakargarh and order dated 16.1.2023 of learned Addl. District Judge, Shakargarh are set aside; in result the suit as also the application under Order XXIII, Rule 1, C.P.C. shall deemed to be pending before the Trial Court which shall now be decided in accordance with law on its own merits, after hearing the parties, in the light of observations made hereinabove.

(RASAAL HASAN SYED)

JUDGE

APPROVED FOR REPORTING

JUDGE

*Rabbani*