PLJ 2025 Lahore 946 (DB)[Multan Bench, Multan]Present: Ahmad Nadeem Arshad and Malik Javid Iqbal Wains, JJ.versusPIR BAKHSH, etc.--RespondentsRev. Apln. No. 3 of 2015 in R.S.A. No. 59 of 1989, decided on 19.6.2025.
Specific Relief Act, 1877 (I of 1877)--
دعوی برائے اعلان منسوخ کر دیا گیا--اپیل منظور ہوئی--دوسری اپیل منظور ہوئی-- درخواست گزاروں کے پیشرو کی جانب سے دائر کردہ سابقہ دعویٰ غیر مشروط طور پر واپس لیا گیا--اس کو چیلنج کیا گیا--جج سنگل نے چیمبرز میں غلطی سے ایک مختلف واپسی کے حکم پر انحصار کیا--یہ دریافت اس حقیقت کا جائزہ لیے بغیر کی گئی کہ اس طرح کا حکم اسی سابقہ دعوے سے متعلق نہیں ہے جس کا حوالہ موجودہ کارروائی میں دیا گیا ہے-- مدعا علیہان نے تحریری بیان جمع کراتے وقت نہ تو یہ ذکر کیا کہ سابقہ دعویٰ مشروط طور پر واپس لیا گیا تھا اور نہ ہی قیمت کی عدم ادائیگی کے حوالے سے کسی خامی کو اجاگر کیا-- اگر قیمت کی ادائیگی کے حوالے سے کوئی شرط ہوتی تو مدعا علیہان کو اسے ضرور اجاگر کرنا چاہیے تھا-- واپسی کا حکم درخواست گزاروں کے پیشرو کی درخواست پر منظور کیا گیا تھا، جس کے ذریعے اس نے نیا دعویٰ دائر کرنے کی آزادی کے ساتھ دعویٰ واپس لینے کی اجازت طلب کی تھی اور درخواست غیر مشروط طور پر منظور کر لی گئی تھی اور اسے شرط عائد کیے بغیر نیا دعویٰ دائر کرنے کی اجازت دے دی گئی تھی-- جج سنگل نے چیمبر میں دعویٰ کی مشروط واپسی اور زیر جائزہ فیصلے میں قیمت کی عدم ادائیگی کے حوالے سے مشاہدات کرتے ہوئے غلطی کی، جب کہ کسی دوسرے دعوے کا حوالہ دیا جس کا اس مقدمے سے کوئی تعلق نہیں تھا، جس کا موضوع اور قانونی بنیاد مختلف تھی۔
----S. 42--Civil Procedure Code, 1908 (V of 1908), O.XLVII & R. 1--Suit for declaration--Dismissed--Appeal--Allowed--Second appeal--Allowed--Earlier suit field by predecessor of applicants was withdraw of suit unconditionally--Challenge to--Single Judge in Chambers mistakenly relied upon a different withdrawal order-- That finding was made without examining fact that such order did not relate to same earlier suit referenced in present proceedings--The respondents while submitting written statement neither mentioned that earlier suit was conditionally withdrawn nor highlighted any shortcoming qua non-payment of cost--Had there been any condition qua payment of cost, respondents must had highlighted same--Withdrawal order was passed on application of predecessor of applicants, whereby she sought permission to withdraw suit with liberty to file fresh one and application was allowed unconditionally and she was given permission to file fresh suit without imposing a condition--Single Judge in Chamber fell in error while making observations qua conditional withdrawal of suit and non-payment of cost in judgment under review while referring to some other suit having no concern with lis, which had a different subject matter and legal basis. [Pp. 950, 963 & 964] A, C, D & E
Civil Procedure Code, 1908 (V of 1908)--
دعویٰ واپس لینا -- پہلے دعوے کی واپسی کے بعد ایک نیا دعویٰ دائر کرنے کی اجازت مختلف زمروں میں آسکتی ہے، جیسے کہ؛ i) غیر مشروط واپسی اس آزادی کے ساتھ کہ نیا دعویٰ دائر کیا جائے؛ ii) مشروط واپسی اس آزادی کے ساتھ کہ نیا دعویٰ دائر کرنے سے پہلے اخراجات کی ادائیگی سے مشروط ہوکر نیا دعویٰ دائر کیا جائے؛ iii) مشروط واپسی اس آزادی کے ساتھ کہ حکم میں بیان کردہ تاریخ پر اخراجات کی ادائیگی سے مشروط ہوکر نیا دعویٰ دائر کیا جائے؛ اور iv) مشروط واپسی اس آزادی کے ساتھ کہ ادائیگی کا وقت بتائے بغیر اخراجات کی ادائیگی سے مشروط ہوکر نیا دعویٰ دائر کیا جائے۔
----O.XXIII & R. 1--Withdrawl of suit--The permission to bring a fresh suit after withdrawal of first suit may fall under different categories such as; i) unconditional withdrawal with liberty to bring fresh suit; ii) conditional withdrawal with liberty to file fresh suit subject to payment of cost before institution of fresh suit; iii) conditional withdrawal with liberty to file fresh suit subject to payment of cost on a date specified in order; and iv) conditional withdrawal with liberty to file fresh suit subject to payment of cost without specifying time of payment. [P. 952] B
Syed Muhammad Hussain Shah Qadri, Advocate for Applicants.
Malik Muhammad Latif Khokhar, Advocate for Respondents.
Date of hearing: 4.6.2025.
Judgment
Ahmad Nadeem Arshad, J.--Through this application, the applicants seek review of judgment and decree dated 27.10.2014 pursuant whereto Regular Second Appeal (R.S.A. No. 59 of 1989) filed by the respondents was allowed by the learned Single Judge in Chambers.
2. Facts in brevity are that predecessor of the applicants namely Mst. Bakhan instituted a suit for declaration on 09.12.1979 against the respondents and sought declaration to the effect that Mst. Rajan and Mst. Siani being widows of Kalu were limited owners of 100 Kanals land, originally belonged to Kalu, therefore, alienation by Mst. Rajan through registered sale deed dated 05.03.1951 followed by Mutation No. 271 dated 05.06.1951 in favour of Defendants No. 17 to 19 is against facts and law as being limited owner said lady had no power to alienate the suit property and also sought declaration that being daughter of Kalu she is entitled to inherit her Shari share measuring 33 Kanals 07 Marlas (1/3 share from his legacy) and also prayed for recovery of its possession. Said suit was dismissed by the learned Trial Court after full-fledged trial vide judgment and decree dated 30.11.1986. Feeling aggrieved, predecessor of the applicants preferred an appeal which was allowed by the learned lower Appellate Court vide judgment and decree dated 04.05.1989 and consequently her suit was decreed. Being dissatisfied, the respondents filed Regular Second Appeal (R.S.A. No. 59 of 1989) before this Court which was allowed by learned Single Judge in Chambers through the judgment and decree dated 27.10.2014 (under review) and suit was accordingly dismissed by observing that the plaintiff did not fulfill the condition imposed by the Court as her previous suit was dismissed as withdrawn with permission to institute fresh suit subject to payment of cost Rs. 5/-, therefore, the suit was bad from the very inception and the decree granted by the learned lower Appellate Court is result of illegality.
3. We have heard learned counsel for the parties at full length and gone through the record minutely with their able assistance.
4. After hearing learned counsel for the parties and going through the record, it has been observed that learned Single Judge in Chambers has decided the appeal on a legal point that the applicants instituted the suit on 09.12.1979 without fulfilling the condition attached with the permission to file fresh suit vide order dated 18.07.1978 as the amount of Rs. 5/- fixed by the learned Trial Court was never paid. For facility of reference, relevant paragraphs of the judgment under review are reproduced as under:
“2. The learned trial Court on 30.11.1986 proceeded to dismiss the suit of the plaintiffs holding that the mutations relating to the years 1948 to 1951 were challenged by means of a suit filed in 1979. The appeal filed by the plaintiffs was allowed and suit was decreed by the learned Additional District Judge on 04.05.1989.
3. Apart from the other points on factual side, it has been argued by the learned counsel for the appellants that since the suit subsequently filed on 09.12.1979 was filed without fulfilling the condition attached with the permission to file fresh suit to the plaintiffs vide order dated 18.07.1978 as the amount of Rs. 5/- as was fixed by the learned trial Court granting permission to file fresh suit after withdrawal of the earlier one was not complied with.
4. The learned counsel for the respondents/plaintiffs once again after going through the record carefully has affirmed the position that at the time of filing of fresh suit, the condition attached with such filing was not fulfilled.
5. Therefore, the filing of the subsequent suit was not a lawful act. The learned Courts below have conveniently ignored this aspect touching the roots of the matter and proceeded with the trial of the suit and hearing of the appeal in a suit which was not competently filed, thus, it was nothing but a futile exercise on the part of the learned Courts below.
6. Since, the suit filed on 09.12.1979, was defective and not proceedable from the time of its inception, therefore, there would be no need to enter into the factual controversy raised in the suit.
The judgment and decree, therefore, passed by the learned first appellate Court on 04.05.1989 is not sustainable.
7. I am also conscious of the fact that I am hearing Regular Second Appeal and in view of the provisions of Section 100 of, C.P.C. in second appeal only question of law are to be adjudicated upon. On the touchstone of provisions of Order XXIII, C.P.C. the subsequently filed suit without fulfilling the condition attached with the earlier withdrawal order, when the plaintiffs were allowed to file a fresh suit, were not fulfilled and the suit as noted herein above was bad at its very inception, the decree granted by the learned first appellate Court is a result of illegality.
8. Result is that this appeal is allowed and the judgment and decree dated 04.05.1989 passed by the learned first appellate Court is set aside and the dismissal of the suit as was announced by means of judgment and decree by the learned trial Court on 30.11.1986 is restored.”
5. In order to reach a just conclusion and to dig out the truth, we have requisitioned the record of Courts below. Although, the record was burnt but the same was subsequently reconstructed which is available before us. Bare reading of the plaint transpires that predecessor of the applicants instituted the suit on 09.12.1979 wherein she referred about withdrawal of her earlier suit in the following manner:
"یہ کہ مدعیہ نے رقبہ متد عویہ کے متعلق ایک دعوی بعنوان مسماۃ بکھاں بنام را جن وغیرہ مورخہ 12.10.79 کو دائر کیا تھا جو بعد الت جناب چوہدری محمد اسلم صاحب زیر تجویز تھا۔ دعوی مذکورہ مدعیہ مورخہ 7.11.79 کو عدالت مذکورہ سے بروئے دائری جدید دعوئے بر بنائے سابقہ بنائے دعوئے واپس لے لیا تھا اور اب جدید دعوئے دائر کیا ہے۔"
6. It is obvious that predecessor of the applicants unambiguously mentioned that earlier suit was withdrawn on 07.11.1979 without mentioning about imposition of any condition qua payment of cost to file subsequent suit.
7. It is both surprising and significant to note that in the present suit, reference was clearly made to the withdrawal of an earlier suit on 07.11.1979. However, in the judgment under review, the learned Single Judge in Chambers mistakenly relied upon a different withdrawal order dated 18.07.1978 (available on record as Exh.D.2). The learned Judge dismissed the applicants’ suit on the ground that they had not fulfilled the condition imposed in order dated 18.07.1978 i.e. the payment of Rs. 5/- as cost before filing a fresh suit. This finding was made without examining the fact that the order dated 18.07.1978 did not relate to the same earlier suit referenced in the present proceedings. In fact, order dated 18.07.1978 (Exh.D.2) pertains to an entirely separate suit concerning Mutation No. 225 dated 03.06.1978, filed by the applicants’ predecessor against Mst. Rajan and Mst. Siani widows of Kalu. For reference, said order dated 18.07.1978 (Exh.D.2) is reproduced as under:
"دعویٰ استقرار حق بدیں مضمون کہ انتقال نمبر 225 مورخہ 3.6.78 سازش، خلاف قانون اور خلاف انصاف کا لعدم ہونے کی بناء پر حقوق مدعیہ پر غیر موثر ہے۔"
"18.7.78 دعویٰ ہذا انتقال ہو کر امروز وصول شد -درج رجسٹر ہوئے۔ کونسل مدعی حاضر بیان کرتے ہیں کہ وہ دعویٰ ہذا واپس لینا چاہتے ہیں اس لیے دعوی ہذا واپس ہوئے۔ بر استدعا کو نسل مدعی نیاد عویٰ دائر کرنے کی اجازت بشرط ادائیگی مبلغ/5 روپے دی جاتی ہے۔ مثل داخل دفتر ہو۔"
8. However, the predecessor of the applicants instituted a suit for declaration titled “Mst. Bakhan v. Mst. Rajan, etc.” Suit No. 264, which was instituted on 14.10.1978 and subsequently dismissed as withdrawn on her application under order XXIII Rule 1, C.P.C. on 07.11.1979 (Exh.D.3) with permission to file fresh suit unconditionally in the following terms:
"کو نسل فریقین حاضر۔ بحث سماعت شد۔
حکم : دعویٰ استقرار یہ ہذا میں مدعیہ نے زیر آرڈر نمبر 23 رول 1 ض۔ د درخواست گزاری کہ عرضی دعویٰ میں مکمل تفصیل اراضی متد عو یہ درج نہ ہو سکی ہے اور بطور دادرسی مستلزمہ دخل یابی کی استدعا بھی نہ کی جاسکی ہے۔ اور یہ ایسے بنیادی فنی نقائص ہیں جنکا مابین فریقین قطعی انفصال مقدمہ کیلئے دور کیا جانا ضروری ہے۔ لہذا مدعیہ کو ان فنی و تکنیکی نقائص کی وجہ سے دعوی ہذا واپس لینے اور انہیں موجبات پر جدید دعویٰ دائر کرنے کی اجازت دی جاوے۔
ii۔ فاضل کو نسل مدعا علیہم نے درخواست ہذا کی مخالفت کرتے ہوئے استدعا کی ہے کہ مذکورہ بالا نقائص "formal defects“ کے زمرہ میں نہ آتے ہیں۔ لہذا مدعیہ کو انہیں وجوہات پر جدید دعویٰ دائر کرنے کی اجازت نہ دی جاوے۔
iii۔ بحث فاضل کو نسل فریقین سماعت کی گئی۔ ریکارڈ ملاحظہ شد۔ جس سے موقف مدعیہ کی تصدیق ہوتی ہے کہ عرضی دعوی میں تفصیل اراضی متد عویہ نہ دی گئی ہے اور بطور دادرسی مستلزمہ دخلیابی کی استدعا بھی نہ کی گئی ہے۔ حالانکہ دعویٰ کی صورت کے پیش نظر ایسا کیا جانا ضروری تھا۔ دعویٰ ھذا اگر موجودہ صورت میں ڈگری بھی ہو جائے تو کوئی قطعی effective ڈگری صادر نہ ہو سکے گی۔ ان حالات میں مجھے فاضل کونسل مدعیہ سے اتفاق ہے کہ مابین فریقین قطعی انفصال مقدمہ کیلیے اسطرح خامی کا دور کیا جانا ضروری ہے۔
اسطرح تفصیل اراضی متدعویہ بھی دیا جانا ضروری ہے۔ اندریں حالات یہ دونوں نقائص ایسے ہیں جو formal defect کے زمرے میں آتے ہیں۔ لہذا مدعیہ کو با اجازت نالش جدید واپس لینے کی اجازت دی جاتی ہے۔ دعویٰ خارج ہوئے۔ خرچہ بذمہ فریقین۔ مسل بعد تکمیل و ترتیب عدالت اپیل کو مرسل ہووے۔ سنایا گیا۔"
9. Perusal of Exh.D.2 (order dated 18.07.1978) it reflects that predecessor of the applicants namely Mst. Bakhan instituted her suit against Mst. Rajan and Mst. Siani whereby she challenged the inheritance Mutation No. 225 dated 03.06.1978 (actual date is 03.06.1948), through which property of Kalu was devolved to his widows under custom as limited owners. Whereas, in her second suit, she impugned the sale deed dated 05.03.1951 and Mutation No. 271 dated 05.06.1951 sanctioned on the strength of said registered sale deed whereby Mst. Rajan sold her share to Wariam Khan s/o Pathana on the ground that Mst. Rajan widow of Kalu had no authority to sale the property devolved upon her as a limited owner. Subject matter of second suit and third suit are almost same, whereas, subject matter of first suit is quite different. This is the reason that predecessor of the applicants in her second and third suit impleaded legal heirs of Wariam as a party.
10. The permission to bring a fresh suit after the withdrawal of the first suit may fall under different categories such as; i) unconditional withdrawal with liberty to bring fresh suit;
ii) conditional withdrawal with the liberty to file fresh suit subject to payment of cost before institution of fresh suit; iii) conditional withdrawal with liberty to file fresh suit subject to payment of cost on a date specified in the order; and iv) conditional withdrawal with liberty to file fresh suit subject to payment of cost without specifying the time of the payment.
11. Order XXIII Rule 01, C.P.C. provides procedure for withdrawal of the suit which reads 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 subjectmatter 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.”
12. Perusal of the Rule ibid, it appears that under Sub-Rule (1) the plaintiff may withdraw a suit at any stage of the proceedings and without an order of the Court. However, under Sub-Rule (2) he has to obtain the permission of the Court for withdrawal and the Court’s own power to permit withdrawal is limited to the instances specifically narrated in clauses (a) and (b). The result of a withdrawal without permission under Sub-Rule (1) is that the plaintiff by Sub-Rule (3) is precluded from instituting a fresh suit, no such consequence is stated in Sub-Rule (2) as following from the withdrawal of the suit and not complying with the conditions on which the permission to withdraw was given.
13. It is incorrect to apply Sub-Rule (1) to cases where cost was imposed and to invoke the consequence stated in Sub-Rule (3) by holding that where a plaintiff to whom a permission to institute a fresh suit was given does not comply with the condition on which he obtained the permission, he must be deemed to have withdrawn his suit under Sub-Rule (1). Since the conditions on which the permission to institute a first suit was given has not been complied with the original suit must be deemed to be pending is also not correct view. The withdrawal is complete the moment and order to that effect is accorded and the right to bring a fresh suit follows from the withdrawal so permitted.
14. Sub-Rule (2) expressly states that in granting the permission the Court may impose “such terms as it thinks fit”. If such terms have been imposed by the Court, then the right to bring a fresh suit is curtailed because the fresh suit can be brought only if the conditions imposed by the Court are fulfilled. Now the question arises what would be the consequence if any of the terms on which permission to withdraw with liberty to institute a fresh suit was given is not fulfilled. The answer can only be that unless the condition is complied with there is no proper suit before the Court. In such a case, the defendant is entitled and the Court has the power to demand that if the plaintiff wishes to proceed with the suit he must comply with the terms on which permission to withdraw was given. Unless the plaintiff satisfy the Court that the terms on which he had received the permission have been satisfied, there is no proper plaint before the Court, with the result that no proceedings on the plaint can be taken. However, the order of dismissal of the suit can, therefore, be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. The Hon’ble Supreme Court of Pakistan in a case titled “Haji Abdul Rasheed Sodagar v. S.M. Lalita Roy and others” (PLD 1959 SC (Pak.) 287), while considering the consequence of non-fulfillment of term in order permitting withdrawal with liberty to institute fresh suit observed as under:
“The question then is what would be the consequence if any of the leans on which permission to withdraw with liberty to institute a fresh suit was given is not fulfilled. The answer can only be that unless the condition is complied with there is no proper suit before the Court. In such a case the defendant is entitled and the Court has the power to demand that if the plaintiff wishes to proceed with the suit he must comply with the terms on which permission to withdraw was given. And leaving the question of limitation aside, the plaintiff may at any time comply with the terms and on proof that he has so complied may demand the Court to proceed with the suit: To put it in a different way, unless the plaintiff satisfies the Court that the terms on which he had received the permission have been satisfied there is no proper plaint before the Court, with the result that no proceedings on the plaint can be taken. The order of dismissal of the suit can, therefore, be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone bona fide delays, omissions, etc.
Applying the above principle to the present case it must’ be held that the respondents complied with the condition when on an objection being taken by the appellant they expressed their willingness to deposit the additional costs and in compliance with the Court’s order actually deposited the costs.”
Hon’ble Supreme Court of Pakistan in a case titled “Malang Dad v. Mst. Mah Rari and others” (PLD 1993 SC 06)”, while discussing the consequence of non-payment of cost observed that in the absence of fulfillment of the said condition the suit is liable to be dismissed being incompetent and observed as under:
“8. There cannot be any cavil with the proposition that if under Order XXIII, Rule 2, C.P.C. permission to withdraw a pending suit with the right to file a fresh suit, is granted to a plaintiff subject to payment of certain costs, it is a term on which such permission is granted and in the absence of fulfilment of the same, the suit is liable to be dismissed being incompetent as in the absence of payment of costs, there cannot be a proper suit before the Court. The learned Judge in Chambers, therefore, could reverse the concurrent judgments of the two Courts below on the above ground.”
However, while considering the ratio observed by the Hon’ble Supreme Court in the case of Haji Abdul Rasheed Sodagar (supra) held as under:
“9. However, we have noticed that while setting aside the concurrent judgments of the two Courts below, the learned Judge in Chambers, has not taken into consideration the question, whether it was a fit case for condonation of the above omission keeping in view the ratio of the judgment of this Court in the case of Haji Abdul Rasheed Sowdagar (supra), wherein this Court has held as follows:
“To put it in a different way, unless the plaintiff satisfies the Court that the terms on which he had received the permission have been satisfied there is no proper plaint before the Court, with the result that no proceedings on the plaint can be taken. The order of dismissal of the suit can, therefore, be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone, bona fide delays, omissions, etc.”
And Hon’ble Court allowed payment of cost by observing as under:
“10. We have considered the question, whether we should allow the payment of the cost by the appellant at this stage. In this regard, it may be pertinent to refer Rule 6 of Order XXXIII of the Pakistan Supreme Court Rules, 1980, which provides that “nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”.
11. In our view, it will not be just and proper to deny two concurrent judgments in favour of the appellant on the above technical ground, the High Court should have, in our view, directed the appellant to pay a reasonable amount as costs to the respondents besides the above amount of Rs. 100 for condoning the above lapse on his part.
12. We are inclined to allow the appellant to pay above cost of Rs. 100 plus a further cost of Rs. 900 for the above omission on his part and to remand the case to the High Court for deciding the Revision Application of the respondents on merits.
13. Mirza Abdur Rashid, learned counsel for the appellant, pursuant to this judgment, has paid the above sum of Rs. 1,000 to Mr. Khalilur Rehman.”
15. However, where no time for payment of cost was specified in the order granting permission to withdraw the suit, delay can be condoned and order of dismissal of the suit could be passed only after it was found that the plaintiff on an objection taken was not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Hon’ble Supreme Court of Paksitan, while referring the above referred two judgments in a case titled “Qamar Zaman and others v. Musammir Shah” (2000 SCMR 1730), held as under:
“7. Having considered the rival contentions anxiously we have come to the conclusion that the impugned judgment is unexceptionable. It is true that there is no proof of payment of costs either before the institution or during pendency of the second suit but the conduct of the respondent cannot be termed as contumacious or obdurate on this score alone because his stance throughout the proceedings was that he had paid the costs. His standpoint is mentioned in the aforementioned judgment of the Peshawar High Court dated 7.4.1984 in these words that ‘the petitioner insisted that the amount had been paid to the defendants’. It is rather difficult to brush aside the stance of the respondent inasmuch as it does not stand to reason that he had put his suit at stake by not making payment of a meagre amount of Rs. 30. Be that as it may,’ no time for payment of costs was specified in the order granting permission to the respondent to withdraw from the suit, the delay was condoned by the trial Court in exercise of its inherent powers and rightly so because the element of mala fide was missing, the inherent power exercised by the trial Court has been upheld by the Appellate Court as well as the High Court and the costs were admittedly paid by the respondent during pendency of the suit culminating in this petition. It was held in Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy and others (PLD 1959 SC 287) that the order of dismissal of the suit can be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit and that whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone bona fide delays, omissions etc.”
16. Where defendant having neither taken objection with regard to dismissal of the suit for non-payment of cost before the learned Trial Court nor mentioning the same in memorandum of appeal, the plaintiff’s suit cannot be dismissed without giving him an opportunity to establish his stance. This Court in a case titled “Muhammad Boota v. Allah Lok and 2 others” (1984 CLC 3118) observed as under:
“The basic question which floats at the surface is that can the disposal of the appeal and the dismissal of the suit, in the manner as done by the learned Additional District Judge be upheld. My answer is in the negative. In case he deemed it fit to entertain the respondents’ plea that costs were not paid, the ground not having been taken up in the memorandum of appeal, or urged before the trial Court, it was essential for him to have given an opportunity to the petitioner, to establish his stand and dispose of the application, before proceeding with the decision of the appeal. The acceptance of the respondents’ appeal was thus illegal and the impugned judgment, therefore, cannot be upheld.”
17. This Court in another case titled “Muhammad Riaz and an other v. Muhammad Siddique and another” (2002 CLC 1045) held as under:
“The rule to be followed in respect of the conditional orders is that if the order makes it clear that the condition is to be fulfilled within a certain time failing which certain consequences will ensue, then on the expiry of the time limit the condition will become operative and the consequences would follow. If no time limit is fixed in the conditional order then the needful may be done at any time during the course of the proceedings. In the case of Shidramappa Mutappa Biradar v. Mallappa Ramchandrappa Biradar AIR 1931 Bom. 257, it was held that if the Court had granted permission to withdraw a suit and bring a fresh one only on payment of costs before institution of the second suit, then the plaintiff is precluded from bringing the second suit unless costs are paid. If such a suit is brought without payment of costs, it is void and payment of costs after filing the suit does not save it. In an earlier case reported as Gollapudi Seshayya v. Nadendla Subbayya and another 1924 Mad. 877 it was held that where a suit was allowed to be withdrawn with permission to file a fresh one on payment of costs then the whole trial of the second suit before the costs were paid, would be bad under Section 10 of the, C.P.C. for want of jurisdiction and the whole suit would have to be tried again. However, this view was not followed by our Supreme Court. While deciding the controversy in the case of Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy and others PLD 1959 SC (Pak.) 287, the Honourable Supreme Court was pleased to hold that if any of the terms on which permission to withdraw with liberty to file a fresh suit was given is not fulfilled, the consequence would be that unless the condition is complied with there is no proper suit before the Court. In such a case the defendant is entitled and the Court has the power to demand that if the plaintiff wishes to proceed with the suit he must comply with the terms on which permission to withdraw was given. It was further held that the plaintiff could comply with the terms at any time during the pendency of the suit and demand the Court to proceed with the suit.”
18. It would not be in the interest of justice to non-suit the plaintiff on mere technicalities of procedure. The Court could direct the plaintiff to pay original cost plus further specified cost for the omission on his part. This Court, in a case titled “Muhammad Siddique and 06 others v. Zafar Iqbal and 9 others” (2005 CLC 33) discussed this principle in the following manner:
“32. In this case while allowing the plaintiffs to withdraw the suit the Court had imposed cost of Rs. 80 on the plaintiffs which they were bound to deposit the same before or at the time of filing the subsequent/present suit. This legal point was discussed in case of Sajid Gul and others reported as AIR 1947 Pesh. 43 wherein the Court had observed as under:
“Where the plaintiff has been allowed to withdraw his suit and is permitted to bring a fresh suit on condition of his paying the cost of suit to the defendant before the institution of the fresh suit, the second suit would not be competent if the condition precedent to the institution of such a suit has not been fulfilled.”
33. As the condition was imposed on the plaintiffs-respondents to file subsequent suit subject to the payment of cost of Rs. 80, the burden to prove such fact was on the plaintiffs whether they have deposited the said cost in the Court at the time, presenting the instant suit and in absence of payment of cost fresh suit is liable to be dismissed being incompetent for in absence of payment of costs which was a condition for filing fresh suit, there could not be a proper suit before the Court and the High Court in such circumstances could reverse the findings of Courts below. Reference in this respect can be made to the case of Malang Dad v. Mst. Mah Pari PLD 1993 SC 6 but it would not be in the interest of justice to non-suit the plaintiffs on mere technicalities of procedure. The Court could direct the plaintiff to pay original cost plus further specified cost for the omission on his part. No such order has been passed by the Court. Had the Court directed the plaintiffs-respondents to deposit the costs imposed to them while allowing to withdraw their previous suit and the plaintiffs-respondents would have been contumacious in obeying the order, then on this sole ground the suit ‘ was liable to be dismissed and if they have tendered the cost subsequently then the plaint would be deemed to have been properly presented and it must be taken to have been filed on the date on which the cost was tendered. In this respect reference can be made to the case of K.P. Kesavalu Naidu v. A.R. Venkatarama Chettiar and others AIR 1942 Mad. 35.”
19. Epitome of the above discussion and extract of decisions of the apex Courts (discussed supra), is that non-compliance of a condition could result in the following result:-
i. Where the permission is subject to payment within a time fixed by the Court, a fresh suit cannot be instituted if the costs are not paid within the time fixed. However, this time can be extended in terms of Section 148 of the Code of Civil Procedure, 1908.
ii. Where the permission is conditional on payment being made to the defendant prior to the filing of a fresh suit, the second suit will be deemed to have been instituted when such payment is made.
iii. Where the order is conditional but no time for payment is specific, payment can be affected during pendency of the fresh suit.
iv. Where conditions have been imposed the Court has inherent power to condone bona fide delay, omissions, etc.
v. Where payment of costs is not a condition precedent, non-payment will not affect competency of the subsequent suit.
It is clear from the above discussion that suit of the applicants could not be dismissed for non-payment of the costs as the said defect was curable and the delay in payment of cost could be condoned by the Court or the cost could be enhanced as per the discretion of the Court.
20. However, the proposition involved in this case is altogether different. There was no question of non-payment of the costs as it has been settled supra that the Court while referring to an irrelevant withdrawal order non-suited the applicants. Now the question before this Court is that whether said factual and legal omission permit us to review the order passed by learned Single Judge in Chambers.
21. The petitioners through this review petition applied for the review of the judgment and decree passed by learned Single Judge in Chambers. Section 114 of CPC, 1908 deals with jurisdiction of Courts of civil jurisdiction to review its judgments. Any person considering himself aggrieved from the decree or order from which an appeal allowed, but no appeal has been preferred or where no such appeal is allowed or by a decision on a reference from a Court of Small Causes may apply for review of the judgment of the Court which passed the decree or order. The grounds on which a review be sought are enumerated under Order XLVII Rule 1, CPC, 1908 which are as follows:
“1. Application for review of judgment.--Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.”
22. Review is creation of the statute. The right to claim review of any decision of the Court of law, is substantive right and not a mere matter of procedure. The august Supreme Court of Pakistan in its Full Bench Judgment titled “Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others” (PLD 1970 Supreme Court 1) held as under:
“The right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not mere matter of procedure. An appeal, as observed by Brandwell, L.J. in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1)--“does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment. This is equally true in case of review, because both appeal and review, though they differ in scope, are substantive rights. As such, neither of them is available unless it has been confirmed by law.”
In “Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and another” (PLD 2007 Supreme Court 121), the august Supreme Court of Pakistan again held that right of review application is a substantive right and is always a creation of the relevant statute on the subject.
23. It is abundantly clear that power of review can be exercised to correct the errors and the main aim is to prevent injustice being done by a Court to correct error or mistake which is manifestly floating on face of record, which is patent that if it allowed to remain intact, would perpetuate illegality and gross injustice. The Hon’ble Supreme Court of Pakistan in a case of “Mehmood Hassan Lark and others v. Muslim Commercial Bank Limited and others” (2010 SCMR 1036) and it has been observed as under:
“We are of the view that before an error can be a ground of review, it is necessary, that it must be one which is apparent on the face of the record and that it must be so manifest, so clear, that no Court could permit such an error to remain on record.”
24. Every Court of law is under obligation to apply the correct law and if it is established that same had not been applied by Court, then, a review application in this regard is maintainable. Similarly, where by some inadvertence an important statutory provision has escaped notice which, if had been noticed, might materially have affected the judgment of the Court. In this regard reference can be made to case law reported as “Lt. Col. Nawabzada Muhammad Amir Khan versus The Controller of Estate Duty, Government of Pakistan, Karachi and Pakistan through the Secretary, Ministry of Finance, Government of Pakistan Rawalpindi” (PLD 1962 Supreme Court 335) wherein it had been observed as under:
“The indulgence by way of review may no doubt be granted to prevent irremediable in injustice being done by a Court of last resort, as where by some inadvertence an important statutory provisions have escaped notice which, if had been noticed, might materially have affected the judgment of the Court, but in no case should be a rehearing be allowed upon merits.”
Reliance is also placed on case law titled “Faqir Muhammad Khan versus Mir Akbar Shah” (PLD 1973 Supreme Court 110).
25. A full Bench of Hon’ble Supreme Court of Pakistan in its judgment titled “Zulfikar Ali Bhutto v. The State” (PLD 1979 SC 741) while dealing with the words “an error apparent on the face of record” while repelling the contention that exposition of law is incorrect or erroneous, or that Court has wrong in application of law to facts of particular case, or that an erroneous inference have been drawn as a result of reappraisal or appreciation of evidence do not constitute valid ground for review, observed that an order based on an erroneous assumption of material fact or without adverting to a provision of law, or a departure from an undisputed construction of the law and the Constitution may amount to an error apparent on the face of the record, and held as under:
“43. From what has been said in the preceding paragraphs, it follows that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination. The contention that the exposition of the law is incorrect or erroneous, or that the Court has gone wrong in the application of the law to the facts of the particular case ; or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence, does not constitute a valid ground for review. However, an order based on an erroneous assumption of material fact, or without adverting to a provision of law, or a departure from an undisputed construction of the law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review, or a finding contained therein, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review.”
26. The misconstruction of law, misreading of evidence and also non-consideration of pleas raised before a Court, would also amount to an error floating on the surface of the record. In this regard reliance can be placed on the decision of the Hon’ble Supreme Court of Pakistan reported in case titled “Land Acquisition Officer and Assistant Commissioner, Hyderabad versus Gul Muhammad through Legal Heirs” (PLD 2005 SC 311), wherein it was held as under:
“12. From the above discussion it would appear that the learned Judge in Chambers of the High Court in appeal has misconstrued the provision of sub-section (1) of Section 25 of the said Act and also has misread the evidence on record, therefore enhancement of rate of compensation was made in violation of the principle of law and law laid down by this Court, consequently in review application the learned Judge in Chambers misconstrued the law and also misread the evidence and did not consider pleas raised before him which amounted to error floating on the surface of record, therefore impugned judgment dismissing the review applications cannot be sustained in law consequently the same is reversed so also the order passed in appeal and the appeals before us are also allowed with no order as to costs.”
27. We are mindful of the fact that scope of review jurisdiction is very limited, however, at the same time it is also a well-entrenched principle of law, as has been time and again reiterated by the apex Court, that a judgment can be reviewed when the error is apparent on the face of the record and that it must be so manifest, so clear, that no Court could permit such an error to remain on record.
28. In the proceedings before us, the error under scrutiny is not one that emerges upon prolonged deliberation or dependent upon subjective inference; rather, it stares at the face of the record with such certainty and plainness that it leaves no room for doubt or debate. It is of the kind which compels judicial intervention.
29. In the instant suit, the respondents/defendants while submitting written statement neither mentioned that earlier suit was conditionally withdrawn nor highlighted any shortcoming qua non-payment of cost. Had there been any condition or stipulation qua payment of cost, the respondents/defendants must have highlighted the same.
30. It is clear that predecessor of the applicants firstly instituted a suit on 10.04.1978 which was withdrawn on 18.07.1978. Then she instituted a suit on 14.10.1978 and withdrew the same on 07.11.1979. Lastly, she instituted the instant suit on 09.12.1979. In the first suit, permission to institute fresh suit was granted subject to payment of Rs. 5/- as cost. The predecessor of the applicants in her plaint specifically mentioned that she had withdrawn her earlier suit on 07.11.1979. Perusal of said order dated 07.11.1979 (Exh.D.3) transpires that said order was passed on the application of the predecessor of the applicants, whereby she sought permission to withdraw the suit with the liberty to file fresh one and her application was allowed unconditionally and she was given permission to file fresh suit without imposing a condition.
31. The power to review could only be exercised for the specific purpose of “correcting any error or supplying any omission” which appears on the surface of the record and could be detected without further elaborate inquiry or investigation. This might apply to accidental or arithmetical mistake due to some forgetfulness not involving a mental process of reasoning or the appreciation of any law or the facts already proved or admitted. Any other view would eliminate the real distinction between the exercise of powers on appeal where the entire subject matter is open to re-assessment and re-decision by the higher authority and on review where the matter has already been finally decided and cannot be re-opened but for the very narrow object of correcting some errors which have occurred in respect of intention to the contrary.
32. What else do we mean by “clarity”, if not this? The law does not demand hyper-technical precision when confronting injustice; it requires, instead, a readiness to recognize when the principles of natural justice and legal equity are contravened in a manner that is conspicuous. The error is as luminous as daylight. It is the one that any reasonable judicial mind, upon mere perusal of the record, would at once acknowledge as an aberration. It is an error which exposes itself by its very presence--a mistake so patent, so glaring, that its non-recognition would amount to judicial blindness.
33. Above referred facts clearly suggest that learned Single Judge in Chamber fell in error while making observations qua conditional withdrawal of the suit and non-payment of cost in the judgment under review while referring to some other suit having no concern with the lis, which had a different subject matter and legal basis.
34. For the foregoing reasons, we unanimously hold that the judgment under review suffers from an error apparent on the face of the record which being is so clear and manifest cannot be permitted to remain on the record. Hence, application in hand is allowed. Consequently, the judgment under review dated 27.10.2014 is set-aside and the appeal of respondents is remanded to the learned Single Judge in Chambers for its decision on merits. No order as to costs.
(Y.A.) Application allowed
0 Comments