Muhammad Mukhtiar Vs Govt of KPK & others

WDGMENT SHEET

F( PESHAWAR HIGH COURT, MINGORA BENCH

(DAR-UL-QAZA), SWAT.

JUDICIAL DEPARTMENT

Civil Revision Petition No. 421-Ml20l7

JUDGMENT

Date of hearing ......13.04.2018..

Petitioners: (Muhammad Mukhtiar) by Mr. Sultan Ali Shah, Advocate.

Respondents:(Govt of Khyber Pakhtunkhwa and others), by Mr. Rafiq Ahmad, Assistant A.G.

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NASIR OZ, J:-

Impugned herein is the order dated 25.11.2017 passed by the learned Civil Judge/Illaqa Qazi-I[, Dir Lower at Timergara whereby application for withdrawal of suit with the permission to file a fresh suit, filed by the petitioner was dismissed and the case was fixed for further proceedings.

2.Petitioner alleges that he filed a suit for declaration wherein he challenged a notice dated 11.10.2017 issued by the respondent No. 6 but on behalf of rest of the respondents for restraining him from making any construction in the suit property, /& he also based his claim regarding ownership of the suit property on an unregistered deed dated

3.Respondents submitted written r' statement and denied the allegations and held that vide notification No. 1522 dated 15.09.1972, the suit property is the State Property and not the property of Ex Ruler Nawab of Dir and therefore, any sale deed on behalf of his legal heirs in favour of petitioner has got no validity in the eye of law. Apprehending some defect in the suit the present petitioner/plaintiff filed an application for withdrawal of suit with the permission to file a fresh suit on the grounds as mentioned therein. Respondents contested the application by filing written statement, hence the impugned order was passed.

4.I have heard the arguments of learned counsel for the petitioner and learned Assistant A.G for respondents and perused the record.

The learned Assistant A.G raised an

objection regarding the maintainability of the present revision petition filed directly in this court but learned counsel for the petitioner controverted the arguments on the grounds that the value for the s4 purpose of court fee and jurisdiction is Rs. 02 crore therefore, this Civil Revision has been directly filed in this court. Face with this situation, leamed

counsel for the petitioner was directed to affix Ad- rrt Valorum court fee on the instant civil revision

6.Petitioner has relied on an unregistered agreement to sell, copies of which are placed on file, alleges to have purchased the suit property but filing a suit for declaration which could have been considered, if the case was going to be filed either on the plea of rejection of plaint or had the learned trial court below considered this aspect and had rejected the plaint. Grounds alleged in the application for withdrawal is that there is some formal defect in the suit for which institution of fresh suit is necessary. Under Order 23 Rule 1 CPC, if a party feel that a suit is going to file for some formal defect he can request for withdrawal with permission to file a fresh but the order in this regard passed by court nevertheless shall always be subject to Order 23 Rule 2 CPC wherein the law of limitation is to be applicable with full force.

7.Since the suit is instituted on 17.10.2017 as only written statement has been filed and is still in its initial stage of the proceedings, therefore, if the petitioner feels that any of his valuable rights may be jeopardized then further trial

of the suit may amount to wastage of precious time of the court.

8.In support of his arguments learned counsel for the petitioner relied on judgment titled " Pehalwan and others Vs Haii Murad and others " reported as 2005 s 1405. relevant para is reproduced as under,

ttln the circumstanccs, the Iligh Court was quite justified in allowing them to withdraw the civil suit and to file a fresh one in order to avoid multiplicity of proceedings in respect of the same cause of action and the same property. It is now well-settled that in tcrms of Order XXIII, rulcs I and 2, C.P.C. pcrmission to withdraw a civil suit for the purpose of filing a fresh onc can be grantcd by the appellate and revisional Court at any stage of proceedings. Reference may usefully be made to the cases of Haji Muhammad Boota and others v. Membcr (Revenue), Board of Revenue Punjab and othcrs PLD 2003 SC 979, Qamar Zaman and othcrs v. Musammir Shah 2000 SCMR 1730 and Ismail v. I'ida Ali PLD 1965 SC 634. Withdrawal of a suit with permission to institute another one is not rcstricted only to the cascs of formal defect. Thc scopc of Ordcr XXIII, rulel, C.P.C. is wide enough to empowcr the Court to grant such permission for some other suflicicnt grounds.

Similarly relied on case titled, "Ismail Vs Fida Ali and others" reported as l,LD 1965 SC 634, relevant para is reproduced as,

"As the plaintiff s suit under Order XXXVII, rule 2, C. P. C. is liable to be dismissed on account of a legal defect, lz wc grant pcrmission to withdraw the suit against the appellant with permission to file a fresh suit for such relicf as may be available to him in law. In thc rcsult the appeal is allowed and the decree passcd. against the appellant by thc High Court of West Pakistan Karachi, is set aside with costs

Learned counsel for petitioner also relied on 2017 NILD 1922, PLD 1984 Lahore 230, 2008

CLC 466.

8.Learned A.G has also raised an

objection that the subject notice was issued under the Removal of Encroachment Act, so the suit was expressly barred before the leamed Civil Judge Even on this score too, it can be held that the application for withdrawal of suit has got good grounds to be allowed.

9.In view of the above, the instant revision petition is allowed to the extent that suit of petitioner shall be allowed to be withdrawn with permission to file a fresh suit but on payment of cost of Rs. 50000/-. In addition the petitioner shall deposit Ad-Valorum court fee within a week, failure to deposit the court fee, this revision petition shall deem to have been dismissed.

g.ryL Dt. 13.04.2018. JUD,GE

(Sanaullah) (SB) tlon'ble Mr.Justice Muhammad Nasir Mahfooz.

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