Monday 25 June 2012

Is the court bound to serve notices before passing withdrawal order?

JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.191/2006
(Fayyaz Ahmed vs. Tariq Bashir etc.)
JUDGMENT
Date of Hearing: 08.03.2012
Petitioner by: Mian Israr-ul-Haq, Advocate.
Respondent No.1 by: Mian Shahid Iqbal, Advocate.

CH. SHAHID SAEED, J:- This civil revision assails the order dated 07.11.2005 whereby respondent No.1-plaintiff’s application under Order XXIII, Rule 1, C.P.C. for withdrawal of suit with permission to file a fresh suit was allowed.
2. In a suit for specific performance, respondent No.1-plaintiff filed an application under Order XXXIX, Rules 1 & 2, C.P.C. which was granted by the trial court vide order dated 04.03.2005 subject to deposit of residual amount of total consideration money with the court. Thereafter, respondent No.1-plaintiff was provided several opportunities but he never deposited the said amount. Subsequently, application under Order XXXIX, Rule 4, C.P.C. was filed by the petitioner which was disposed of providing another opportunity to respondent No.1-plaintiff to deposit the above said amount. Afterwards, the case was fixed for hearing but one day before that, respondent No.1-plaintiff filed an application under Order XXIII, Rule 1, C.P.C. and withdrew the suit vide order dated 07.11.2005 with permission to file a fresh suit without notice to the other side. Hence this petition.
Civil Revision No.191/2006 2
3. The contention of learned counsel for the petitioner is that the suit was withdrawn by the plaintiff in absence of the petitioner or his counsel; that no notice was issued to the petitioner before passing the withdrawal order; that the court was under obligation to intimate the petitioner before allowing the request for withdrawal of the suit as certain rights of the petitioner had been created prior to withdrawal which could not be ignored by the court. He avers that the learned trial court has failed to apply its judicial mind and has passed an illegal order which cannot sustain in the eye of law. He maintains that after withdrawal of earlier suit, respondent No.1-plaintiff has filed a fresh suit concealing the facts pertaining to previous suit and obtained a stay order fraudulently therein. Learned counsel prays that the instant civil revision be allowed, impugned order dated 07.11.2005 be modified precluding permission to re-file the suit afresh.
4. Conversely, learned counsel for respondent No.1 submits that under Order XXIII, Rule 1, C.P.C., the plaintiff could withdraw his suit even in the absence of the other side and there is no bar upon the court or the plaintiff in this regard. According to him, the only condition imposed on the plaintiff for withdrawal of his suit under Order XXIII, C.P.C. is that he can do so to his own extent and not to the extent of other plaintiffs, if any. Learned counsel asserts that the suit can simply be withdrawn by the plaintiff or his counsel merely on oral statement and even no written request in this regard is required under the law. Learned counsel further states that there is no
Civil Revision No.191/2006 3
truth in allegation of concealing facts, as in the plaint of fresh suit, all the previous facts have duly been mentioned. He next argues that after withdrawal of the suit wherein this civil revision was filed, the instant petition has become infructuous, it having no substance be dismissed. He has placed reliance on the law laid down in cases Karim Gul and another vs. Shahzad Gul and another (1970 SCMR 141), Moula Bakhsh vs. Muhamamd Zahid and another (PLD 1990 SC 596) and Ismail vs. Fida Ali and Syyed Iqbal Shabbir (PLD 1965 SC 634).
5. Respondent No.2 has already been proceeded against ex parte vide order dated 29.11.2006.
6. I have heard the arguments put forth by learned counsel for the parties and perused the record.
7. The main dispute between the parties is whether a plaintiff can withdraw his suit in absence or without notice of the other side or not.
8. Order XXIII of C.P.C. provides that a plaintiff at any time after institution of a suit can withdraw his suit or abandon part of his claim against all or any of the defendants but the court has to satisfy itself while allowing permission of filing the suit afresh.
9. In the instant case, the plaintiff moved an application for withdrawal of the suit with the permission to file the same afresh. Prior to that the court in application under Order XXXIX, Rules 1 & 2, C.P.C. has ordered for deposit of balance consideration amount with the court which was never complied with by the plaintiff
Civil Revision No.191/2006 4
despite the fact that he was provided several opportunities for the same. The petitioner filed application under Order XXXIX, Rule 4, C.P.C. for recalling interim stay order passed in favour of the respondent-plaintiff. The case was fixed for hearing for 08.11.2005 but the plaintiff just to deceive the other side filed the application on 07.11.2005 which was allowed by the court on the same day merely on the basis of the statement made by the plaintiff’s counsel that there are some legal defects in the plaint which are required to be removed. However, under the settled principles, simply stating legal defect without specifically mentioning thereabout is nothing. The present case is of formal defect but no particular defect is mentioned in the application. The defects in the plaint shall be considered if the same is not drafted as per requirements of Order 7, Rules 1-7, C.P.C. After having passed the order for deposit of balance amount, certain rights were accrued to the petitioner-defendant. The trial court was required to issue notice to the other side, hear both the parties and then decide the matter of withdrawal of the suit with permission to file the same afresh through a speaking order. When rights of defendants had already been created, the court could not straightaway grant the permission to file the suit afresh. Though the application does not speak about what defects were found by the plaintiffs but under the law, the defects in the suit could be rectified by filing an amended plaint with permission of the court and there was no need to file the fresh suit until and unless the court is satisfied that no party will suffer from such permission.
Civil Revision No.191/2006 5
10. Learned counsel for the respondent-plaintiff has cited judgments which reflect that permission for filing fresh suit can be granted by the court. In my considered opinion, permission of filing fresh suit is a subsequent event after withdrawal of the suit. While allowing the permission of filing the suit afresh, the court was bound to look into the defects in the plaint on the basis of which the withdrawal was being sought which is missing in the impugned order.
11. The impugned order is sketchy, neither notice was issued to the other side nor any reasons have been given therein, therefore, it cannot be treated as speaking one as required under the law. The plaintiff’s application under Order XXIII, Rule 1, C.P.C. was nothing but just an attempt to deprive the defendant from their lawful rights. The learned trial court has failed to apply its judicial mind and safeguard the rights of other side as no notice or intimation was given to the defendants. The impugned order is illegal and also against principles of natural justice as basic principles were not taken into consideration while granting permission of fresh suit. Reliance is placed on the law laid down in cases Sardar Muhammad Kazim Ziauddin Durrani vs. Sardar Muhammad Asim Fakhuruddin Durrani and others (2001 SCMR 148), Dr. Raza Muhammad Khan vs. Principal Ayub Medical College, Abbotabad and three others (2004 CLC 1511) and Mrs. Rafiqa Iqbal Ahmad and another vs. Muhammad Ali Hyder (1984 CLC 2886).
Civil Revision No.191/2006 6
12. For the aforementioned reasons, the present civil revision is allowed and the impugned order is set aside resulting that the earlier suit of the plaintiff will be deemed to be pending before the trial court who will start wherefrom the suit was dismissed.
(Ch. Shahid Saeed)
Judge

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