Begum Nighat Naseem & 2 Others Vs Mst Zeenat Shameem deceased through LRs etc

Stereo. H C J D A. 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Civil Revision No.50173 of 2026 Begum Nighat Naseem, etc.

Versus Mst. Zeenat Shameem (deceased) through L.Rs., etc.

Date of Hearing 22.10.2026 Petitioner by; Mr. Zahid Umar, Advocate.

Respondent(s) by; M/s Ghulam Fareed Sanotra and Raja Ijaz Aziz Khan, Advocates.

JUDGMENT

Asim Hafeez, J.:- This Civil Revision, against concurrent decisions, was entertained for hearing on the assertions made on 09.09.2026, relevant part of the order reads as;

“Contends that Appellate Court failed to appreciate scope of Order II Rule (2) and Order XXIII Rule (1) of Code of Civil Procedure, 1908 (“the Code”). Submits that subsequent suit was based on fresh cause of action, which was instituted by legal heirs of Raja Naseem Akhtar Khan. Submits that Appellate Court failed to appreciate that earlier suit was filed by Raja Naseem Akhtar Khan, which otherwise was not dismissed on merits or in exercise of power under Order XVII Rule (3) of the Code, but for non- submission of amended plaint. Submits that there was no requirement for petitioners to seek permission while withdrawing Civil Revision, in wake of fresh cause of action”.

2.Trial Court had dismissed suit of petitioners in wake of the mandate of sub-rule (3) of Rule (1) of Order XXIII of Civil Procedure Code 1908 (the ‘Code’), which decision was maintained by the Appellate Court. Facts relevant for adjudication of the matter are that properties owned by one Raja Shameem Akhtar, upon his death, allegedly devolved on survivors, which were his brother Raja Naseem Akhtar and widow, Mst. Zeenat Shameem. Raja Naseem Akhtar instituted suit for declaration, wherein he

had sought declaration to the extent of his entitlement, that is 3/4th share in the properties of his deceased brother, along with partition (the ‘first suit’). Suit proceedings continued till 04.05.2023 when suit was dismissed for non-compliance of Court’s orders; which were failure to file amended plaint; submit list of legal-heirs and to provide FRC. Appeal against order of dismissal was dismissed; being beyond limitation. Whereafter, Civil Revision No.53432 of 2025 was filed and during pendency thereof, Raja Naseem Akhtar died. Legal heirs of deceased – which are petitioners here - were brought on record and on their instructions Civil Revision was withdrawn, simplicitor, on 05.03.2026. Thereafter, legal heirs filed suit for declaration, partition, injunction and recovery of mesne profit (the ‘second suit’).

Second suit was dismissed in wake of simplicitor withdrawal of Civil Revision, without permission to file fresh suit. Appellate Court affirmed the decision. Hence, this Revision.

3.Learned counsel for the petitioner reiterated submissions and emphasized that suit filed on fresh cause of action is not hit by mischief of Sub-rule (3) of Rule (1) of Order XXIII of the Code, who refers decisions reported as “MUHAMMAD CHUTTAL v. ATTA MUHAMMAD through L.Rs.” (2007 SCMR 373), “ZAKIRULLAH and others v. MUHAMMAD REHMAN and others” (2025 SCMR

430)and “ABRAR HUSSAIN v. Mst. BIBI SHAHIDA and others” (PLD 2026 SC 42).

4.Conversely, learned counsel for respondents 1(a) & (b) contend that once Civil Revision has been withdrawn without securing a right to file fresh suit, subsequent suit is not maintainable. He insisted that second suit seeks declaration qua the entitlement claimed by deceased in the first suit, hence, contention of fresh cause of action is misconceived. Reference is

made to the case of “Mst. SAFIA KHANUM and others v. ADDITIONAL DISTRICT JUDGE-ii, EAST, ISLAMABAD and others” (2026 SCMR 994).

5.Heard. Controversy concretized requires resolution upon understanding the interplay of three provisions, which are sub-rule (3) of Rule (1) of Order XXIII of the Code, Order II Rule (2) of the Code and Section 11 of the Code. Each provision of law has its own relevance, causation, scope, limitations and consequential effect, which may overlap in the context of circumstances, depending upon the facts of each case. And applicability of aforesaid provisions are examined in the context of scenario of this case.

Section 11 of the Code; res judicata;

6.Section 11 of the Code has least application. The first suit was dismissed not on merits but in wake of alleged failure to comply with various orders of the Court. Requirements for attracting provision under reference are not fully met.

Order II Rule (2) of the Code;

7.This rule is relevant for the purposes of ensuring wholeness of the claim at the time of filing of action. Question of relinquishment or abandonment of claim does not arise in the context of the second suit.

There is no dispute that what was not brought in the first suit or any excess claim in the second suit – no splitting up of claims in piecemeal is involved.

Hence Order II Rule 2 of the Code is least relevant.

Order XXIII sub-rule (3) of Rule (1) of the Code;

8.Upon examining the contents of the first and second suit it is evident that legal heirs of Raja Naseem Akhtar are seeking declaration qua 3/4th share in the estate of Raja Shameem Akhtar and not a declaration vis-à-vis the estate of Raja Naseem Akhtar – assets owned by him at the time of death. Is Raja Naseem Akhtar, at the time of his death, a lawfully declared and acknowledged owner of 3/4th share in the estate of his brother. If he was a declared owner there was no occasion for seeking declaration. I have examined the prayer of the second suit, which substantially seeks declaration of 3/4th share in estate of their father’s brother. There is a reason that why they had not sought partition, simplicitor. Evidently, right to inherit vested in Raja Naseem Akhtar on his brother’s death and the claim of heirs is purely derivative. And no new right is created for the purposes of fresh cause of action by legal heirs of Raja Naseem Akhtar.

Dismissal of a suit is a decision, which attained finality upon withdrawal of Civil Revision. Adjudication of the lis concluded and no permission was sought before withdrawal. How same cause be agitated in second suit.

Withdrawal of revision has same effect as withdrawal of suit under Section 141 of the Code.

While considering the scope of sub-rule (3) of Rule (1) of Order XXIII of the Code the merits of the claim or interest in the property is not relevant but whether right to sue survived upon seeking withdrawal of suit.

And once first suit was withdrawn without reserving the right to file fresh suit the preclusion is conclusive. In these circumstances, I find that no illegality was committed by the Courts in resorting to mandate of sub-rule

(3)of Rule (1) of Order XXIII of the Code. The judgments referred by counsel for the petitioner are distinguishable on facts of the case, under reference.

9.This Civil Revision is, hereby, dismissed.

Judge.

Approved for reporting.

Judge.

A.D. Mian*