Muhammad Farid Khan & others Vs Faisal Khan & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department)

WP No. 342-A/2024.

Muhammad Farid Khan and others.

(Petitioner/s)

V e r s u s.

Faisal Khan and others.

(Respondent/s)

Present: Malik Muhammad Asif, Advocate for petitioners.

Sardar Chanzaib, Advocate for respondent.

Date of hearing: 28.09.2026

JUDGMENT

SYED MUDASSER AMEER, J. Through this

constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have called in question the judgment dated 29.02.2024 passed by the learned Additional District Judge-V, Abbottabad, in Civil Revision No.45/CR of 2022, whereby the learned revisional Court set aside the order dated 25.10.2022 passed by the learned Civil Judge, Abbottabad, allowing the petitioners' application under Order XXIII Rule 1, C.P.C. for withdrawal of the suit with permission to institute a fresh suit.

2.The facts, briefly stated, are these. The petitioners instituted Civil Suit No.532/1 on 08.09.2016, seeking declaration and consequential relief in respect of the property described in the plaint. Their claim was founded, inter alia, upon registered sale deed No.477 dated 10.12.1917. The petitioners alleged that certain revenue entries were incorrect and had adversely affected their rights. During the pendency of the suit, defendants Nos.59 to 61 were impleaded on 09.03.2022 under Order I Rule 10, C.P.C.

The learned trial Court observed that the rights of the newly added defendants could be determined only after recording evidence from both sides. The suit thereafter proceeded towards recording of the plaintiff's evidence.

3.It is not disputed that some of the defendants had earlier failed to file their written statements despite repeated opportunities. Their defence was consequently struck off under Order VIII Rule 10, C.P.C. That, however, is not the controversy before this court. The present question concerns the right of the petitioners to withdraw the suit with liberty to institute a fresh one after the proceedings had substantially advanced and after defendants Nos.59 to 61 had been brought on the record.

4.On 10.10.2022, when the matter was fixed for plaintiff's evidence, the petitioners moved an application under Order XXIII Rule 1, C.P.C., seeking withdrawal of the suit with permission to file a fresh suit. The reason advanced was, broadly, that certain documents and revenue material had subsequently come to their knowledge or possession and had not been incorporated in the revenue record when the suit was originally instituted. The defendants opposed the application. They maintained that the suit

had already been pending for several years, evidence had commenced, and the petitioners could not be permitted to abandon the proceedings merely because they wished to bring additional material or improve the manner in which their case had been pleaded.

5.The learned trial Court, by order dated 25.10.2022, allowed the application and permitted the petitioners to institute a fresh suit, subject to payment of costs of Rs.5,000/-. The learned trial Court itself observed that the reason advanced by the petitioners stood on a “weak footing”, yet it proceeded to allow the withdrawal. The defendants challenged that order before the learned Additional District Judge. The learned revisional Court, by the impugned judgment dated 29.02.2024, accepted the revision and set aside the order of the learned trial Court. The learned Additional District Judge held that the existence of a formal defect was a sine qua non for permission to withdraw with liberty to institute a fresh suit. He further held that the reasons advanced by the petitioners did not constitute such a defect and that the learned trial Court had failed to record the objective satisfaction required by Order XXIII Rule 1(2), C.P.C.

6.Learned counsel for the petitioners contended that the learned revisional Court had adopted an unduly narrow view of Order XXIII Rule 1, C.P.C. It was argued that the petitioners had subsequently obtained material documents which had not been available to them at the time of institution of the suit. It was further submitted that the evidence of the petitioners had not been fully completed and, in particular, cross-examination of all the plaintiff's witnesses by the newly impleaded defendants was still

pending. According to learned counsel, the petitioners should not be compelled to continue with a suit in which the relevant material was not properly brought on the record.

7.Learned counsel for the respondents, on the other hand, supported the impugned judgment. It was contended that the suit had remained pending for about six years before the application for withdrawal was made. The plaintiffs had already entered upon their evidence. Defendants had been brought on the record. The proper course, if the plaintiffs considered the pleadings deficient or wished to place additional material before the Court, was to avail the remedies available in the pending proceedings.

Withdrawal with liberty to institute a fresh suit, it was argued, would merely restart the litigation and place the defendants at a disadvantage.

8.I have heard learned counsel for the parties and examined the record with their assistance. The short question is whether, on the facts of the present case, the petitioners satisfied the requirements of Order XXIII Rule 1(2), C.P.C. so as to obtain permission to withdraw the pending suit with liberty to institute a fresh suit on the same subject matter.

9.The starting point is the language of Order XXIII Rule 1, C.P.C. Sub-rule (1) recognizes the plaintiff's right to withdraw a suit or abandon a part of the claim. But that right carries a consequence. Where the plaintiff withdraws without the permission contemplated by sub-rule (2), he is precluded by sub- rule (3) from instituting a fresh suit in respect of the same subject matter. Sub-rule (2) creates an exception. It enables the Court, where it is satisfied either: (a) that the 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, to permit withdrawal with liberty to institute a fresh suit. The two grounds are distinct. A formal defect is not the only statutory basis. Clause

(b)independently permits the Court to grant leave where other sufficient grounds are established.

10.This distinction is important because the learned Additional District Judge observed that a formal defect was the sine qua non for granting permission. That proposition, stated in such absolute terms, is not an accurate reading of the Rule. Clause (b) expressly provides an independent ground. The real test, therefore, is not whether the petitioners have identified a formal defect alone. The question is whether the material placed before the learned trial Court disclosed either a formal defect of the kind contemplated by clause (a), or some other legally sufficient ground within clause (b).

11.The Supreme Court has repeatedly explained the limited nature of this power. In Muhammad Yar (deceased) through L.Rs.

and others v. Muhammad Amin (deceased) through L.Rs. and others (2013 SCMR 464), the Supreme Court held that permission to institute a fresh suit is not to be granted as a matter of right or routine. The Court must be satisfied that the case falls within the statutory grounds. The plaintiff seeking such permission must explain the reasons for withdrawal, and the Court must consider those reasons and pass a speaking order demonstrating the requisite objective satisfaction. The principle was further explained in Khawaja Bashir Ahmed and Sons (Pvt.) Ltd. v.

Messrs Martrade Shipping and Transport and others (PLD 2021

SC 373). The Supreme Court emphasized that the facts stated in the application must first amount, in law, to a “ground”. Only then does the Court proceed to examine whether that ground is sufficient. A plaintiff cannot institute litigation, leave it at will and reserve a right to re-enter the same litigation whenever he considers it convenient.

12.The same principle has been applied in Bismillah and 2 others v. Naik Muhammad through Legal Heirs (2024 CLC 262).

There, the plaintiffs sought withdrawal after evidence had been recorded and relied upon the subsequent availability of revenue documents. The Court held that the availability of additional documents did not, by itself, constitute a formal defect or other sufficient ground for abandoning the pending suit and starting again. The proper procedural course was to bring the material before the Court in accordance with law. The Court also stressed that an order granting such permission must disclose the reasons which led the Court to the requisite satisfaction. Likewise, in Sharaf-ud-Din v. Abdul Wadood and others (2022 CLC 1282), withdrawal was declined where the plaintiff had failed to identify a defect which could not be cured in the existing proceedings and where withdrawal would prejudice the defendants. The Court emphasized that the power under Order XXIII Rule 1(2) is discretionary but judicial, and cannot be exercised without examining the statutory requirements.

13.The older authority of this Court in Gul Amin and another v.

Haji Muhammad Akram (PLD 1981 Peshawar 72) is also instructive. It was held that wrong drafting of the plaint, non- joinder of parties and omission to attach documents do not, by

themselves, constitute a formal defect. The defect must be of such a nature that it prevents a fair trial on the merits and cannot effectively be remedied by amendment. The Court also cautioned against permitting withdrawal merely to give a plaintiff another opportunity to conduct the litigation afresh after failing to prosecute it with due care. The principle is sound. Litigation is not a dress rehearsal. A plaintiff cannot ordinarily abandon a suit after it has progressed and obtain a fresh opportunity merely because the case could have been pleaded or proved differently.

14.The decision in Syed Zia-ul-Hassan and others v. Muzaffar Khan and others (2013 CLC 1767) does not lead to a different result. There, the defect went to the constitution of the suit itself.

Subsequent mutations had transferred the property to other persons who had not been impleaded, and the effective adjudication of the dispute was therefore impossible in their absence. The Court treated failure to implead such necessary parties as a formal defect and permitted withdrawal. That situation is materially different from the present case. Here, defendants Nos.59 to 61 were subsequently impleaded under Order I Rule 10, C.P.C. The very reason for their impleadment was to enable their rights to be determined after hearing them. Their presence on the record does not make the suit defective. Nor does the fact that their cross-examination of the plaintiff's witnesses remains incomplete render the suit incapable of adjudication.

15.The latest pronouncement of the Supreme Court in Mst.

Sakina Bi and others v. Barkat Hussain and others (2026 SCLR 90 = 2026 SCP 83) reinforces the same approach. The Supreme Court has treated permission under Order XXIII Rule 1(2) as a

special statutory concession, distinct from the plaintiff's ordinary right to withdraw under sub-rule (1). The discretion must be exercised carefully, having regard to the circumstances and the effect which a fresh suit may have upon the opposite party and the progress of litigation. The judgment also makes clear that a withdrawal with permission places the parties, in law, substantially in the position in which they would have stood had the earlier suit not been instituted. That consequence explains why the Court must scrutinize an application for such permission with care. It is not a mere procedural formality.

16.I now turn to the facts of the present case. The petitioners did not point out any defect in the institution of the suit which would necessarily result in its failure. The suit was instituted in 2016. The parties remained before the Court for several years.

Issues were framed. Proceedings took place. Defendants Nos.59 to 61 were subsequently impleaded. The petitioners entered upon their evidence. Nothing has been shown which demonstrates that the suit, in its existing form, must fail because of some defect which cannot be cured in the pending proceedings. The case, therefore, does not fall within clause (a) of Order XXIII Rule 1(2).

17.Nor do I find any other sufficient ground within the meaning of clause (b). The principal reason advanced by the petitioners was that certain documents or revenue material were subsequently obtained or came to their knowledge. That circumstance, by itself, does not make the pending suit incompetent. A document discovered during the pendency of litigation does not ordinarily destroy the suit already instituted.

The law provides procedural means by which a party may seek to

amend its pleadings, produce additional documents, or otherwise place relevant material before the Court. Whether such an application should be allowed depends upon its own statutory requirements. But the availability of a document during the pendency of a suit is not, without more, a sufficient ground for abandoning that suit and commencing another.

18.The present case is even further removed from the exceptional situation contemplated by Order XXIII Rule 1(2). The application was made after the suit had remained pending for several years and when the matter was already proceeding with the plaintiff's evidence. The learned trial Court itself described the reason advanced by the petitioners as being on a “weak footing”.

Having reached that conclusion, the Court was required to examine whether some independent sufficient ground nevertheless existed under clause (b). It did not do so. Nor did it explain why the material relied upon by the petitioners could not be brought before the Court in the pending proceedings. That omission is material. The requirement under Order XXIII Rule 1(2) is one of judicial satisfaction. It is not enough to say that the plaintiff has a reason for wanting to withdraw. The Court must determine whether that reason is one which the law recognizes as sufficient for the exceptional relief of a fresh suit.

19.There is another important consideration. Defendants Nos.59 to 61 were not parties to the suit from its inception. They were brought on the record on 09.03.2022. The trial Court itself considered their participation necessary for determination of their rights. They were entitled to defend the case and to cross-examine the plaintiff's witnesses. The fact that their cross-examination had

not been completed does not constitute a defect in the suit. It merely means that the trial was not yet complete. A pending procedural step cannot be converted into a ground for destroying the proceedings in which that step is to be completed.

20.Indeed, the position would become anomalous if the incomplete cross-examination of a newly added defendant were treated as a reason for withdrawing the suit. The defendants have acquired a procedural right to contest the claim in the pending proceedings. To permit withdrawal at that stage would require them to face a fresh plaint, fresh pleadings, fresh issues and fresh evidence, notwithstanding the time and resources already expended. This is precisely why the Supreme Court has emphasized that permission under Order XXIII Rule 1(2) cannot be granted as a matter of course and that the Court must consider prejudice to the opposite party and the possibility of abuse of the process of law.

21.True that the petitioners have an absolute right under Order XXIII Rule 1(1), C.P.C. to withdraw their suit. But that is not the relief they seek. They seek something more. They want the Court to permit withdrawal with liberty to institute a fresh suit on the same subject matter. That liberty is not a matter of right. It can be granted only when the conditions of sub-rule (2) are satisfied.

This distinction must be maintained. Otherwise, the restriction contained in sub-rule (3) would lose much of its meaning.

22.The Supreme Court's decision in Khawaja Bashir Ahmed is particularly relevant in this regard. The Court held that where permission is sought under clause (b), the facts stated in the application must first constitute a legally recognizable ground.

Only thereafter can the Court assess its sufficiency. The power cannot be used to enable a litigant to leave the pending litigation whenever he finds it convenient and return with a fresh suit at a later stage. The present case does not disclose such a legally sufficient ground.

23.There is, however, one aspect of the impugned judgment which requires clarification. The learned Additional District Judge appears to have treated the existence of a formal defect as the indispensable condition for grant of permission. As already noted, that proposition is too broad. Clause (b) independently recognizes “other sufficient grounds”. The learned revisional Court nevertheless reached the correct conclusion because, on the facts of the case, no sufficient ground under clause (b) has been demonstrated either. The impugned judgment is, therefore, sustainable in its result, though the legal principle is to be understood in the manner explained above.

24.This conclusion does not mean that the petitioners are left without a remedy in respect of any genuinely relevant material which became available during the pendency of the suit. If the petitioners consider that the plaint requires amendment, they may avail the remedy available under Order VI Rule 17, C.P.C., subject to the requirements of that provision and the law governing amendment of pleadings. Order VI Rule 17 empowers the Court, at any stage of the proceedings, to permit such amendment as may be necessary for determining the real questions in controversy. Similarly, if the petitioners seek to place additional documents or other admissible material on the record, they may move the appropriate application before the learned trial

Court under the relevant provisions of law. The learned trial Court shall consider any such application independently and strictly in accordance with law.

25.It is made clear, however, that nothing stated in this judgment should be understood as expressing any opinion on the merits of any proposed amendment, additional document or additional evidence. Whether an amendment is necessary, whether it changes the nature or character of the suit, whether a document can be produced at the stage at which it is tendered, whether further evidence is permissible, and whether any prejudice would be caused to the defendants are matters for the learned trial Court to determine in accordance with the applicable provisions of law.

The petitioners shall not, merely by virtue of this judgment, be taken to have acquired any automatic right to amend the plaint or to lead additional evidence.

26.This course also preserves the rights of the newly impleaded defendants. Their right to cross-examine the plaintiff's witnesses shall remain intact. If the law permits any further procedural step for bringing the controversy properly before the trial Court, the same may be sought and considered by that Court. The object should be to decide the controversy in the suit already pending, rather than to multiply the proceedings without a statutory justification for doing so.

27.The approach is consistent with the principle underlying Order XXIII Rule 1. Procedure is meant to advance the adjudication of the real controversy. It is not meant to provide repeated opportunities to begin the same litigation afresh. A plaintiff may withdraw. That is his right. But a plaintiff who seeks

the additional privilege of starting again must bring himself within the conditions prescribed by law. The petitioners have not done so.

28.For the reasons stated above, I find no jurisdictional defect, material illegality or material irregularity in the judgment dated 29.02.2024 passed by the learned Additional District Judge-V, Abbottabad, warranting interference in constitutional jurisdiction.

The learned trial Court had allowed the petitioners to withdraw the suit with liberty to institute a fresh suit without recording the requisite objective satisfaction under Order XXIII Rule 1(2), C.P.C. The reason advanced, namely subsequent availability or discovery of documents, did not make the suit defective, nor did it constitute any other sufficient ground for commencing the litigation afresh.

29.Consequently, this writ petition is dismissed. The judgment dated 29.02.2024 passed by the learned Additional District Judge- V, Abbottabad, in Civil Revision No.45/CR of 2022, is maintained, subject to the clarification contained in paragraphs 24 to 26 of this judgment regarding the independent scope of clause

(b)of Order XXIII Rule 1(2), C.P.C.

Announced.

(Tahir CS)

JUDGE