-O.XXIII, R. 1--Withdrawal of suit--At any time after institution of suit plaintiff may, as against all or any of defendants, withdraw his suit or abandon part of his claim.

 PLJ 2022 Quetta 1

Civil Procedure Code, 1908 (V of 1908)--

----S. 152 & O.XXIII, R. 1--Application for withdrawal of suit on compromise basis--Allowed--Application for correction of order--Allowed--Appeal allowed--Challenge to--Suit had been withdrawn by Respondents No. 1 to 103 within meaning of Order XXIII sub-rule 1(1), CPC without seeking permission for filing fresh suit--The provision nowhere states about passing of decree, where simpliciter permission had been granted by Court--Impugned decree passed by Courts below whereby “decree” pursuant to allowing withdrawal of suit without permission of filing fresh suit has been drawn cannot be sustained--Revision petition disposed of. [Pp. 6 & 7] D & E

Civil Procedure Code, 1908 (V of 1908)--

----O.XXIII, R. 1--Withdrawal of suit--At any time after institution of suit plaintiff may, as against all or any of defendants, withdraw his suit or abandon part of his claim.                    [P. 5] A

Civil Procedure Code, 1908 (V of 1908)--

----S. 2(2)--Decree--A decree is formal expression of an adjudication by Court of law which conclusively determines rights of parties with regard to all or any of matter in controversy in suit, which may be a preliminary or final or partly preliminary and partly final decree.                                               

                                                                                        [Pp. 5 & 6] B

1991 SCMR 2457 ref.

Civil Procedure Code, 1908 (V of 1908)--

----S. 2(14)--Any decision of a Civil Court which does not qualify to be a decree; Order is appealable only if provided by Section 104 read with order 43 of "CPC”.                              [P. 6] C

M/s. Nauroz Khan Mengal and Gul Hassan Mengal, Advocates for Petitioners.

Mr. Habib-ur-Rehman, Advocate for Respondents.

Mr. Khalil-uz-Zaman, Addl: Advocate General for Official Respondent.

Date of hearing: 19.6.2020.

 PLJ 2022 Quetta 1
Present: Muhammad Ejaz Swati, J.
ALI AKBAR and others--Petitioners
versus
MIR GHULAM ALI and others--Respondents
C.R. No. 49 of 2014, decided on 10.7.2020.

Judgment

The Respondents No. 1 to 103 (plaintiffs) filed a civil suit before learned Additional Qazi, Kharan for declaration, permanent injunction and partition of land situated at Mouza Kinri, District, Kharan including unsettled land against the petitioners (defendants) and remaining respondents (defendants) showing themselves as joint owners with the defendants. The suit was contested by the petitioners/defendants by way of filing their written statements, out of pleadings of the parties issues were framed. The plaintiffs produced five witnesses, however, during pendency of the suit on 01.04.2013 plaintiffs filed an application under Order XXIII sub-sub rule (1) of Civil Procedure Code (CPC) for simple withdrawal of the suit. The learned Additional Qazi, Kharan vide order dated 01.04.2013 passed order as under.

"مقدمہ پیش ہے۔ مختاران مدعیان مع کونسل مسٹر ظہور احمد حاضر ہیں۔ مدعا علیم مختار او اصالتا و کالتا حاضر ہیں۔ کونسل مدعا علیم مسٹر نذر جان و مسٹر محمد اسمعیل پیر گزنی و مسٹر محمد حسن شاہوانی و مسٹر محمد اشرف ایڈووکیٹ حاضر ہیں۔ آج مدعیان کے مختاران بذریعہ درخواست استدعا کیا ہے کہ بوجہ خانگی راضی نامہ کے مدعیان مقدمہ چلانا نہیں چاہتے ہیں۔ چونکہ مدعیان کا درخواست آرڈر 23 قاعدہ 1 کے تحت فقط دستبرداری از مقدمہ کے بابت ہے۔ لہذا دست برداری نامہ کو منظور کرکے مقدمہ بالا مزید کاروائی کرکے داخل دفتر کی جاتی ہے۔ پرچہ ڈگری مرتب ہو۔ مسل داخل دفتر ہو۔"

2. The petitioners filed an application under Section 152 Civil Procedure Code (CPC). The Respondents No. 1 to 103 contested the application. However, the Respondents No. 149, 150, 179, 180, 181, 182, 184, 185 and 186 conceded the contents of application. The learned Qazi vide order dated 28.06.2013 allowed the application and passed the following order.

"آج مقدمہ ایک درخواست دوبارہ درستگی فیصلہ و ڈگری محررہ 01.04.2013 زیر دفعہ 151-152 ض۔ د کے منظوری کے نتیجے میں بر آمد کرکے پیش ہے۔ جس کے تحت پرچہ ڈگری محررہ 01.04.2013 میں ایک جملہ بمطابق استدعا سائلان جملہ (راضی نامہ) کو حزف کیا ہے۔ لہذا سائلان کی استعدی کو بغرض انصاف منظور کر کے پرچہ ڈگری از سر نو مرتب ہو کر راضی نامہ کے ذکر کو حزف کیا جاتا ہے۔ حکم پر اجلاس سنایا گیا ہے۔"

3. The Respondents No. 1 to 103/plaintiffs assailed the order dated 28.06.2013 in appeal. The learned Majlis-e-Shoora, Kharan vide judgment/decree dated 20.11.2013 (the impugned judgment/decree) allowed the appeal and set-aside the order dated 28.06.2013 and restored order dated 01.04.2013.

The impugned order has been challenged by the petitioners/defendants through the instant petition.

4. The learned counsel for petitioners contended that the plaintiffs had filed an application for simple withdrawal of the suit, which was allowed by the trial Court, vide order dated 01.04.2013 within the meaning of Order XXIII (1), CPC and there was no occasion for the trial Court to pass decree, therefore, the learned Qazi vide order dated 28.06.2013 omitted the word compromise from the order; that the learned appellate Court has failed to consider the legal aspect of the matter, as the simpliciter withdrawal of the suit clearly means that suit is dismissed as withdrawn, therefore, the preparation of a decree pursuant to application for withdrawal by the appellate Court is contrary to law and also effect the rights of petitioners.

5. Learned counsel for Respondents No. 1 to 103 contended that the application for withdrawal of the suit filed by the plaintiff was allowed by the trial Court vide order dated 01.04.2013 and if the petitioners had any grievance they could have challenged the same before the high forum and their application under Section 152, CPC was not competent, therefore, the appellate Court set-aside the order of the trial Court passed on the application filed by the petitioner.

It was further contended that the suit was withdrawn by plaintiffs due to compromise with some of the defendants outside the Court and in this respect order dated 01.04.2013 passed by the trial Court was a valid order, therefore, no illegality or irregularity has been committed by the appellate Court.

6. Having heard the learned counsel for the parties and perused the record. It is an admitted fact that suit instituted by the respondents was simpliciter withdrawn by plaintiffs while filing an application under Order XXIII sub-rule (1), CPC.

7. There is no cavil to the proposition that parties to a suit is at liberty to file application for withdrawal of the suit without taking permission of fresh suit within the meaning of the Order XXIII Rule 1 sub-rule (1), CPC of it deals with the withdrawal of the suit and sub- rule (2) of Order XXIII deals with withdrawal of the suit with a liberty to institute the fresh suit on the same cause of action. While Rule 3 of Order XXIII of CPC recognizes decree on the basis of compromise for which, it is required to be proved to the satisfaction of the Court trying the lis that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court can pass an order that such agreement, compromise or satisfaction to be recorded which shall pass a decree in accordance therewith so far it relates to the suit.

8. It appears that in case of withdrawal of the suit under sub-rule (1) there is a withdrawal from the suit and it be clear that it is un-questionable right of plaintiff to withdraw the suit unless the right has been created in favour of opposite party by way of any interest/decree.

9. Sub-rule (3) of rule 1 of Order XXIII deals with the consequence of withdrawal of the suit without the permission referred to in sub-rule (2), which reads as under.

          “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 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.”

10. In view of the above provision of law in the instant case, the Respondents No. 1 to 103 have withdrawn their suit simpliciter within the meaning of Order XXIII sub-rule (1), CPC, which says that “at any time after institution of the suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim” Order XXIII rule 1, CPC provides that there is total withdrawal of the suit that the suit is dismissed as withdrawn and finally disposed of the suit, it brings an end and by sub-rule (3) of rule 1, a fresh suit is barred within the meaning of aforesaid provision read with Section 12 (1), CPC. Reference in this respect is to be made in cases titled “Ghulam Abbas & others vs. Muhammad Shaft through LRs” (2016 SCMR 1403) and “Muhammad Yar (Deceased) through L.Rs. others vs. Muhammad Amin (Deceased) throush L.Rs. and others” (2013 SCMR 464).

11. The question between the parties is, as to whether in case of simpliciter withdrawal of the suit within the meaning of Order XXIII sub-rule (1), CPC the withdrawal of suit followed a decree or otherwise?

Section 2 (2), CPC defines decree which reads as under.

“decree” means the formal expression of an adjudication which, so far as regard the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within Section 144, and an order under rule 60, 98, 99, 101 of Order XXI] but shall not include--

(a)      any adjudication from which an appeal lies as an appeal from an order, or

(b)      any order of dismissal for default.

          Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”

12. Section 2(2), "CPC” defined “decree” whereas Section 2(14), "CPC” provides the definition of an order, the joint analysis of both the above provision indicates that a decree is the formal expression of an adjudication by Court of law which conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit, which may be a preliminary or final or partly preliminary and partly final decree; the importance of decree lies in the fact that ordinarily an appeal lies from every decree (1991 SCMR 2457) and second appeal may lies against the decree. According to Order XX Rule 6 "CPC” a decree should automatically followed the judgment, it is the decree that is to be executed and as such it should be agree with and be in accordance with the judgment. Reliance is placed in case titled “Rehmat Wazir & others vs. Sher Afzal & others” reported in (2005 SCMR 668).

13. Whereas an order contemplates the former expression of any decision of a Civil Court which does not qualify to be a decree; Order is appealable only if provided by Section 104 read with order 43 of "CPC”.

14. According to Section 36 "CPC” like the execution of decree, order can be executed, however withdrawal of suit under Order XXIII sub-rule (1) does not amount to a decree unless cost are imposed. Reference in this respect is to be made in case titled “Haji Muhammad Boota & others vs. Member (Revenue), Board of Revenue, Punjab & others” (PLD 2003 SC 979), wherein the Hon’ble Supreme Court was pleased to observed as under:

“It is to be appreciated that the order granting permission to withdraw a suit is not a decree. It neither deals judiciously with subject-matter of the suit nor gives any reason for setting aside a decree passed by a Court of competent jurisdiction after recording evidence.”

15. The Civil Procedure Code makes a clear distinction between the various mode in which a suit may come to an end in a Court. Where a suit come to an end by dismissal it is so provided in “CPC” expressly and the suit may be dismissed under the provision of Order IX Rule 2, 3, 4 and 6 CPC for failure to take some steps necessary for further proceedings with the suit. The suit may also be dismissed under Order IX Rule 8, CPC for default of appearance by the plaintiff. The suit may also be dismissed after it is heard on merit and withdrawal of suit under Order XXIII sub-rule (1) CPC.

16. In the instant case, the suit had been withdrawn by the Respondents No. 1 to 103 within the meaning of Order XXIII sub-rule 1(1) CPC without seeking permission for filing fresh suit. The provision ibid nowhere states about passing of decree, where simpliciter permission had been granted by the Court.

Thus in view of the above, order related to the simpliciter withdrawal of the suit is not a decree, there was no question, therefore, of drawing the order as decree, thus the position in law is that where the Court allows the suit to be withdrawn without liberty to file fresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree under Section 2(2) of "CPC”, particularly when Order XXIII Rule 1 sub-rule (3) position in law is clear that when the Court allows the suit to be withdrawn without liberty to file fresh suit, without condition, such order allowing withdrawal cannot constitute decree and it did not affect a defendants defence, therefore, the impugned decree passed by the Courts below whereby “decree” pursuant to allowing withdrawal of the suit without permission of filing fresh suit has been drawn cannot be sustained.

In view of the above, the impugned order dated 20.11.2013 passed by the learned Majlis-e-Shoora is set aside and Civil Revision Petition No. 49 of 2014 is disposed of accordingly.

Parties are left to bear their on cost.

(Y.A.)  Petition disposed of