Sohail Majeed Bhatti VS Muhammad Ashraf, etc

Form No: HCJD/C-121

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Regular First Appeal No.248 of 2021

Sohail Majeed Bhatti Versus Muhammad Ashraf (late) through his legal heirs and others.

Appellant by: Mr. Jamil Ahmed Abbasi, Advocate.

Respondents by: Nemo for respondents No.1-a to 1-h. Ch. Shafique Ahmad Ramay, Advocate for respondent No.2 / CDA.

Ch. Abdul Majeed, Advocate for respondent No.3.

Malik Talat Hussain, Advocate for respondent No.4.

Date of hearing: 30.01.2023

TARIQ MEHMOOD JAHANGIRI, J: Through this regular first appeal, the appellant has assailed order / decree dated 07.04.2021, passed by Civil Judge 1st Class (West), Islamabad, whereby application under Order VII Rule 11 C.P.C. filed by contesting respondents No.1-a to 1-h was allowed and plaint of the suit filed by the appellant was rejected.

02.Succinctly stated, facts of the matter are that the appellant earlier filed a suit titled as “Sohail Majeed Bhatti vs. Muhammad Ashraf & others”, against the respondents regarding the same suit property on the same cause of action for possession through specific

performance, declaration, mandatory and permanent injunction.

Subsequently, the appellant filed second suit No.189 of 2013 for possession through specific performance, declaration, mandatory and permanent injunction. Admittedly, the suit property in second suit was also a subject matter of previous suit and the parties of previous suit were almost the same.

03.Respondents / defendants of Civil Suit No.189 of 2013 filed an application under Order VII Rule 11 C.P.C. before the learned trial Court for rejection of plaint on the ground that suit is barred under Order XXIII Rule 1(3) C.P.C.; main stance of respondents / defendants was that the earlier suit was withdrawn by the appellant on 03.05.2013, regarding the same cause of action, hence second suit was not maintainable under Order XXIII Rule 1(3) C.P.C. and Section 12(1) C.P.C. Learned trial Court allowed the application filed under Order VII Rule 11 C.P.C. vide impugned order dated 07.04.2021, and rejected the plaint of civil suit filed by the appellant, hence the instant appeal.

04.Learned counsel for the appellant, inter alia, contends that second suit was maintainable as the appellant mentioned in his statement recorded before the learned trial Court in the first suit that he wants to withdraw the suit and if required, he reserves the right to file fresh suit. Though, learned trial Court while passing order for withdrawal of first suit did not grant permission for filing second suit

but as the appellant requested for said relief in his statement so it will be presumed that permission was granted by the Court;

impugned order is erroneous and not tenable under the law; has been passed against the facts and law laid down by the superior Courts of the country, hence liable to be set aside. Learned counsel has placed reliance upon cases reported as 1970 SCMR 141, 2013 SCMR 46, PLD 2021 SC 373 & 2018 CLC Note 106.

05.Conversely, learned counsel for contesting respondents state that plaint of the suit filed by the appellant was rightly rejected, as learned trial Court did not grant permission to file fresh suit to the appellant in the first suit. Only it was mentioned that suit is dismissed as withdrawn, so the appellant was precluded from filing the said suit under Order XXIII Rule 1(3) C.P.C. and Section 12(1) C.P.C. and prayed that instant regular first appeal is liable to be dismissed.

Learned counsel have placed reliance upon cases reported as PLD

2021 SC 373 & 2018 CLC 648.

06.Arguments advanced by the learned counsel for the parties have been heard and record has been perused with their able assistance.

07.For the convenience, Order XXIII Rule 1 of Code of Civil Procedure is reproduced as under:

“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 authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.”

08.There are certain conditions for withdrawal of the suit. First is that, if the Court is satisfied that a suit must fail by reason of some formal defect and second is that, there are other sufficient grounds for allowing plaintiff to institute a fresh suit for the subject-matter of a suit or a 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 claim. Without passing of formal order for permission to file fresh suit by the learned trial Court in terms of Order XXIII Rule 1(2)(b) C.P.C., it cannot be presumed mechanically that permission to file fresh suit has been granted by mere mentioning in the petition filed for withdrawal of suit; learned

Court is required to pass specific order granting permission to the plaintiff for filing the fresh suit after being satisfied in terms of order supra.

09.It is categorically mentioned in the Order XXIII Rule 1(3) C.P.C.

that if the suit is withdrawn without the permission referred to in sub-rule (2), the plaintiff shall be liable for such costs as a Court may award and shall be precluded from instituting any fresh suit.

10.It is also provided in section 12(1) C.P.C. that:

“12(1). Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.”

11.Admittedly, in the instant case no such permission was granted in terms of Order XXIII Rule 1(2) C.P.C., so the appellant was precluded from bringing a fresh suit under Order XXIII Rule 1(3) and section 12(1) C.P.C. Reliance in this regard is placed on law laid down by the Hon’ble Supreme Court of Pakistan in a case titled as “Bashir Ahmed and Sons Pvt. Ltd. Vs. Messrs Martrade Shipping and Transport and others” (PLD 2021 Supreme Court 373).

12.As far as merits of the case are concerned, the appellant has filed a civil suit on 06.05.2013 for specific performance of sale agreement dated 27.12.1990, executed between the parties on the basis of expectation of allotment of a residential plot with contesting respondents. Admittedly, no plot was allotted to contesting

respondent at the time of execution of the agreement; allotment letter of plot No.382-A, Sector F-11/3, Islamabad available on the record shows that the same has been allotted to the legal heirs of Muhammad Ashraf (late) on 07.11.2012, so execution of sale agreement on the basis of expected allotment is void in view of law laid down by this Court in a case titled as “Saeed Ullah Khan vs.

Muhammad Khalid and 3 others” 2018 CLC 648 [Islamabad].

13.In the light of above discussion and law laid down by the Hon’ble Supreme Court of Pakistan, it has been established that plaint of a suit filed by the appellant was rightly rejected under Order VII Rule 11 C.P.C. vide impugned order / decree dated 07.04.2021, passed by Civil Judge 1st Class (West), Islamabad, which needs no interference by this Court, hence instant regular first appeal is without merits and accordingly dismissed.

(TARIQ MEHMOOD JAHANGIRI)

JUDGE

Announced in Open Court on this 6th Day of February, 2023.

JUDGE

Approved for Reporting

Ahmed Sheikh*