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Official Citation: 2003 PLD 979
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2002
Decision Date: 2002-12-31
Parties: Haji MUHAMMAD BOOTA and others vs MEMBER (REVENUE), BOARD OF JUDGMENT
This judicial decision was delivered by the Supreme Court of Pakistan on 2002-12-31. The matter involves proceedings between Haji MUHAMMAD BOOTA and others and MEMBER (REVENUE), BOARD OF JUDGMENT, officially reported as 2003 PLD 979. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 2003 Supreme Court 979
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Faqir Muhammad Khokhar, Tanvir Ahmed Khan Title:Haji MUHAMMAD BOOTA and others vs MEMBER (REVENUE), BOARD OF
JUDGMENT
Reported As: PLD 2003 Supreme Court 979 Result: Petitions dismissed Judgment JUDGMENT TANVIR AHMED KHAN, J.---Leave to appeal is sought in the aforementioned two petitions against the judgment dated 13-12-1999 whereby a learned Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dismissed R.F.A. No,61 of 1997 filed by the petitioners with a direction to the District Collector, Rahim Yar Khan, to take necessary steps for the escheatment of the property in dispute as the same vested in the Government being its rightful owner under Article 172 of the Constitution of the Islamic Republic of Pakistan, [973. In Civil Petition No,22/L of 2000, the learned counsel for the petitioners has taken exception to paragraph 17 of the impugned judgment wherein the aforesaid direction has been made, while in Civil Petition No,84/L of 2000, exception has been taken to the entire impugned judgment. This case has got a chequered history. The facts briefly narrated for the disposal of these petitions are that land measuring 799 Kanals, 13 Marlas situated in MauzaKot Zulfiqar, Tehsil and District Rahim Yar Khan, belonged to one Sheikh Muhammad Shamas-ud-Din. The petitioners in Civil Petition No,84/L of 2000 claimed that said Sheikh Muhammad Shamas-ud-Din transferred land measuring 50 Bheegas to Alaf-ud-Din, their predecessor-in-interest on Adhlapi terms vide an agreement registered on 1-8-1934. Respecting the remaining land, his claim was that he was appointed as an agent and was entrusted with the supervision and management of the same. In this regard reference was made to a document executed on 14-3-1935, whereby his appointment as representative was made for fixed remuneration for the supervision of the land excluding the subject-matter of Adhlapi contract. It is reflected from the record that said Shamasud-Din went to Bombay in late thirties and since then his whereabouts are not known till date. Alaf-ud-Din,
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claiming himself to be in adverse possession, succeeded in managing to get Mutation No,207 entered in his name respecting the entire land sanctioned on 1-4-1946 on the basis of the same. On the other side of the picture, Rukan-ud-Din, predecessor-in-interest of the petitioners in Civil Petition No,22/L of 2000, claimed that henit chased the disputed land through one Ghulam Ahmad, general attorney of Shamas-ud-Din, who has already stated settled in Bombay, through a registered sale deed dated 9-3-1946. Said Rukan-ud-Din filed a declaratory suit on 10-2-1952 claiming ownership of the suit land on the basis of aforementioned registered sale deed. The predecessor-in-interest of the petitioners in Civil Petition No,84/L of 2000, Alaf-ud-Din contested the suit. Out of contradictory pleadings of 'the parties, issues were framed and the parties led their evidence. The learned trial Court vide its judgment dated 31-10-1960 dismissed the suit of Rukan- ud-Din and it was also held that Alaf-ud-Din's possession over the land in dispute was in the capacity of an agent of the original owner Shamas-ud-Din and was permissive in nature, therefore, it could not have matured into adverse possession. Regarding Rukan-ud-din, it was held by the learned trial Judge that he had failed to establish a valid title through a registered sale deed as neither the original owner Shamas-ud-Din appeared nor the alleged special attorney Ghulam Ahmad was produced before the Court. The learned Senior Civil Judge while dismissing the suit also made a direction that the copy of the judgment be sent to the Collector for information and examination on the question of escheatment of the property, subject-matter of the suit. Rukan-ud-Din filed an appeal against the judgment and decree of the learned Senior Civil Judge, which was dismissed by the learned District Judge, Rahim Yar Khan, vide his judgment dated 6-5- 1964. The learned First Appellate Court also maintained the direction of the learned Senior Civil Judge whereby a copy of the judgment was sent to the Collector to determine the question of escheatment. Rukan-ud-Din filed R.S.A. No,36 of 1964 before the Lahore High Court at Bahawalpur Bench, which was dismissed by a learned Single Judge vide his judgment dated 26-3-1980. It is pertinent to mention here that Alaf-ud-Din filed R.S.A. No,76 of 1964/BWP against the judgment of the District Judge and the same was also dismissed by the High Court on 3-11-1964. Thereafter, Rukan-ud-Din filed a petition for leave to appeal before this Court, which was converted into Civil Appeal No,209 of 1988 after the grant of leave on 26-6-1988. It is pertinent to mention here that Rukan-udDin side by side approached the Revenue Authorities taking exception to Mutation No,207 sanctioned on 1-4-1946 in favour of Alaf-ud-Din without disclosing the pendency of the matter before the Civil Court. The learned Member, Board of Revenue, through his order dated 19-11-1956 cancelled Mutation No,207 sanctioned in favour of Alaf-ud-Din on the basis of adverse possession of the disputed land. Mutation No,214 was got sanctioned under his orders in favour of Rukan-ud-Din on the basis of sale deed executed on 10-3-1946. The petitioners in Civil Petition No,22/L of 2000 i,e, successors ininterest of Rukan-ud-Din, at the time of hearing of Civil Appeal No,209 of 988 made an oral request for the withdrawal of the suit as the same had become infructuous after the relief granted by the learned Member, Board of Revenue, whereby Mutation No,214 was sanctioned in favour of the petitioners through his order dated 19-11-1956 after cancelling Mutation No,207 sanctioned in favour of Alaf-ud-Din. This Court dismissed the appeal as having become infructuous through an order dated 8-6-1991. The same reads as under: "After institution of the suit on 18-10-1952, the appellant got relief from the Member, Board of Revenue on 19-11-1956, therefore, the suit having become infructuous, the appellant would like to withdraw the suit with permission that if there is any interference in the rights of the appellant, the appellant shall have a right to sue. The appellant is allowed to withdraw the suit in the above terms. The appeal being, thus, infructuous, is dismissed. No costs."
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However, subsequently this Court on 18-6-1991 took suomotu notice of its aforesaid order dated 8- 6-1)91 on the ground that the petitioners were refused withdrawal of the suit by the learned Single Judge of the Lahore High Court during the pendency of R.S.A. No,36 of 1964 which was dismissed on merits vide judgment dated 26-3-1980. The Collector was also directed by the High Court to examine the question of escheatment. Furthermore, the power of attorney upon which the whole case of Rukan-udDin was based was produced for the first time before this Court and there was no occasion to test its authenticity and genuineness, as such a notice was issued for suomotu review of the earlier order dated 8-6-1991 and the appeal was ordered to be decided on merits. It would be appropriate to reproduce the order of this Court passed on 18-6-1991 while ordering suomotu review:-- "This is with reference to the order dated 8-6-1991 whereby the appellant was allowed to withdraw the suit with permission to refine it in case there was any interference in his rights. The appellant was refused permission by the High Court to withdraw the suit and his R.S.A. Was dismissed on merits. The Collector was directed to examine the question of escheat as there appeared no other claimant of the property. The power of attorney on which the appellants' claim was exclusively based was for the first time produced in the Courts below, therefore, no occasion arose for testing its authenticity and genuineness. In that view of the matter order dated 8-6-1991 appears to deserve review suomotu and appeal decided on merits. Let the matter be processed. " (Underlining is ours). This Court, after hearing the parties, recalled the suomotu revieworder on 17-2-1997 whereby the appellants of Civil Appeal No,209 of 1988, the present petitioners in Civil Petition No,22/L of 2000, were allowed to withdraw the suit with permission to re-file it if there was any interference in their rights. It was also held that the withdrawal of the suit obviously would not bar initiation of appropriate proceedings by appropriate authority/party by showing that the disputed land did not vest legally and validly in Rukanud-Din, predecessor-in-interest of the petitioners in Civil Petition No,22/L of 2000. Thereafter, second round of litigation started whereby Alaf-ud-Din, predecessor-in-interest of the petitioners in Civil Petition No,84/L of 2000, filed a suit on 26-6-1997 for declaration, cancellation of documents, restoration of Mutation No,207, possession, mesne profits and permanent injunction taking exception to Mutation No,214, which was sanctioned in favour of Rukan-ud-Din under the order of the learned Member, Board of Revenue dated 19-11-1956. The respondents, who are petitioners in Civil Petition No,22/L of 2000, filed an application under Order VII, Rule 11, C.P.0 for the rejection of the plaint wherein a specific plea of res judicata was taken inter alia on the ground that the claim of the predecessor-in-interest of the petitioners Alaf-ud-Din, was rejected by the learned Senior Civil Judge, Rahim Yar Khan, in the earlier round of litigation through his judgment dated 31- 10-1960, which determination was maintained by the learned first Appellate Court as well as the learned Single Judge of the Lahore High Court. The plaint was, accordingly, rejected by the learned Civil Judge 1st Class, Rahim Yar Khan, through his order dated 6-10-1997 under Order VII, Rule 11, C.P.C. The petitioners Bashir Ahmed etc. Filed R.F.A. No,61 of 1997 before the Lahore High Court at Bahawalpur Bench, which too was dismissed by a learned Division Bench through its judgment dated 13-12-1999. Hence, these petitions for leave to appeal. It is inter alia argued by the learned counsel for the petitioners in Civil Petition No,22/L of 2000 that their title to the disputed land was accepted by the learned Member, Board of Revenue, through his order dated 19-11-1956 by sanctioning Mutation No,214 and after the withdrawal of the suit the effect of the judgment earlier given by the High Court was done away with, the learned Division Bench of the Lahore High Court had committed an illegality in making observation/direction for the escheatment of the property under Article 172 of the Constitution. He has further contended that the learned Judges of the Division Bench have committed an error in basing their decision on the
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earlier round of litigation whereby the civil suit filed by said Rukan-ud-Din was dismissed by the learned Senior Civil Judge, Rahim Yar Khan, on 31-10-1960; the appeal preferred by him was dismissed by the learned District Judge, Rahim Yar Khan. On 6-5-1964 and R.S.A. No,36 of 1964 filed by him also met the same fate as it was dismissed by the Lahore High Court on 25-3-1980. However, during the pendency of Civil Appeal No,209 of 1988 before this Court, the petitioners' appeal was dismissed as having become infructuous and the suit was allowed to be withdrawn at an oral request. According to the learned counsel, because of the withdrawal of the suit, all the judgments earlier given by different forums had evaporated/washed away along with the findings as well as the decrees which were maintained by the High Court while dismissing R.S.A. No,36 of 1964. The proceedings, according to him, in the suit should be deemed to have never been instituted. The learned Judges of the High Court in the circumstances have committed a grave illegality in making reference to those judgments in paragraph 17 of the impugned judgment and making direction to the Collector, Rahim Yar Khan, to take necessary steps for the escheatment of the property as the same vested in the Government under Article 172 of the Constitution. He has made reference to certain precedents. Learned counsel appearing for the petitioners in Civil Petition No,84/L of 2000 has taken exception to the entire impugned judgment as, according to him, he was admittedly having a fresh cause of action after the decision of this Court in suomotu review dated 17-2-1997 whereby it was held that the withdrawal of the suit would obviously not bar initiation of appropriate proceedings by appropriate authority/party of showing that the land in dispute did not vest legally and validly in Rukan-ud-Din who was represented by his legal heirs. Learned Law Officer, Miss Yasmin Sehgal, has supported the impugned judgment stating that the withdrawal of the suit would not dissipate the judgments given by the subordinate Courts i,e, the Senior Civil Judge and the District Judge, which were maintained by the High Court. She has further contended that the sanction of Mutation No,214 in favour of Rukan-ud-Din by the Member, Board of Revenue, which was of summary nature, would not clothe him with the title of the property in dispute. In support of her above contentions she has also placed reliance on a number of judgments. We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire material placed on record with their assistance. The contention of the learned senior counsel for the petitioners in Civil Petition No,22/L of 2000, Mr. S.M. Zafar, that permission for the withdrawal of the suit by this Court has resulted in completely washing away the findings earlier recorded by the Senior Civil Judge through his judgment dated 31-10-1960, which were maintained by the learned District Judge as well as the learned Single Judge of the Lahore High Court through judgments dated 6-5-1964 and 26-3-1980 respectively, is not apt. To determine this aspect, Order XXIII, Rules 1 and 2, C.P.C. Is reproduced, which is as under:-- "(1) 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." Along with the same, it is appropriate to reproduce section 97 of the Code of Civil Procedure, 1859, which prior to the promulgation of Code of Civil ' Procedure, 1908, catered the similar situation. The same was in the following words:--
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"If the plaintiff at any time before final judgment satisfies the Court that there are sufficient grounds for permitting him to withdraw from the suit, with liberty to brink a fresh suit for the same matter, it shall be competent to the Court to grant such permission on such terms as to costs or otherwise as it may deem proper." A reading of the aforesaid two provisions demonstrates that the words "some formal defect" were not in the Code of 1859. Under the present law, for withdrawal of suit, it is necessary that the Court must be satisfied before allowing to withdraw a suit that there is some formal defect in the pleadings of parties, by virtue of which the suit may not proceed or there may be some other sufficient ground for the same. The word "withdrawal" has been defined in the Black's Law Dictionary, Seventh Edition, as under:-- "Withdrawal. n. 1. The act of taking back or away; removal, withdrawal of consent. 2. The act of retreating from a place, position, or situation, withdrawal from the moot-court competition. 3. The removal of money from a depository, withdrawal of funds from the checking account. 4. Renunciation, withdrawal from the conspiracy to commit arson." The principle underlying this provision for the withdrawal of the suit or abandonment of the same is that the law confers upon a person no rights or benefits which he does not wish to retain. The object is to permit the plaintiff/party to have a fair trial on merits in cases where the defects are of formal nature. Further it is not an absolute right and is subject to certain limitations based-on the principle that where third parties have acquired a right, there can be no withdrawal to their prejudice. This demonstrates that the party can disclaim any concession or right which he does not wish to retain. Any person can disclaim any right or benefit but adverse order passed by a Court of competent jurisdiction could only be done away with if the same is set aside. It is a condition precedent for exercise of this power that the Court in order to grant such concession must be satisfied that the suit was likely to fail due to some formal defect or there are sufficient grounds for the exercise of the same. The defects should not go to the root of the case. It comes within the ambit of discretionary power, if aforementioned either of two conditions i,e, the formal defect or sufficient grounds are demonstrated and the Court is satisfied for the same. As already stated the withdrawal can only be allowed, if the defect is formal in nature and should not go to the root of the case. Reference is made to 1972 SCMR 205; Mrs. Rafiqa Iqbal Ahmad and others v. Muhammad Ali Hyder 1984 CLC 2886; Ch. Muhammad Ali and 3 others v. Sardar Muhammad KazimZ iauddin Durrani and 2 others 1999 CLC 1437. This Court had dealt the issue of withdrawal in a very lucid manner in an earlier case reported as Javaid Iqba lAbbasi & Company v. Province of Punjab and 6 others 1996 SCMR 1433 where it was held as under:- "9. It is true that under Order 23, Rule 1, C.P.C. The respondent No,3/petitioner had the right to withdraw his Writ Petition No,11880 of 1995 unconditionally at any time after its institution and the Court normally could not decline such prayer. It is, however, not correct to argue that the right to withdraw suit unconditionally under Order 23, Rule 1, C.P.C. Is absolute in nature and that under no circumstances the Court would refuse such prayer. The Court may decline the request for unconditional withdrawal of a suit/proceedings where the nature of suit/proceeding is such that both plaintiff and defendant may be entitled to relief in the case. For instance in a suit for administration, for a suit for accounts or a suit for partition of the property the plaintiff cannot claim absolute right to withdraw the suit unconditionally, if the defendants opposed the prayer. Similarly, in cases where the defendant after filing of the suit acquires a right in respect of the subject- matter of the suit, the plaintiff could not be allowed to withdraw the suit where the right acquired by defendant is likely to be defeated by withdrawal of the suit. In the case of Amjad RashidKhan
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Malik v. ShahidaNaeem Malik 1992 SCMR 485 this Court while considering the argument that the plaintiff has an absolute right under Order 23, Rule 1, C.P.C. To withdraw the suit at any time after its institution, repelled the contention, as follows:-- Order 23, Rule 1 confers a right in the plaintiff to withdraw the suit at any time after the institution against all or any of the defendants. He can withdraw or abandon the entire or part of his claim. However, this general rule will not apply in cases where a preliminary decree has been passed or where in pursuance of such a decree a third party interest has been created which shall be adversely affected. In such circumstances the right to withdraw the suit cannot be exercised without the consent of such third party. In Hulas Rai Baijnath v. K.B. Bass & Co. Ltd. AIR 1963 Allahabad 368 it was held that in the absence of a preliminary decree or award of compromise, obviously it is open to the plaintiff to withdraw the suit. In Sirajuddin v. Mst. AmtualRauf PLD 1977 Karachi 933, it was observed that although the plaintiff cannot be forced to withdraw the suit but the Court has the discretion to refuse the termination of the proceedings in cases where the defendant has acquired valuable rights or in cases where the plaintiff has sued in representative capacity so that the withdrawal of suit would affect the rights or in cases where the parties arrayed as defendants are also plaintiffs in the proceedings so that a decree in their favour must necessarily be passed if the suit culminates in judgment. 4, It is, thus, clear that under Order 23, Rule 1, C.P.C. The plaintiff does not have a right to withdraw the suit at his own free will affecting the rights of the defendants and also the rights of third parties which might have been created by or arising from the orders passed or proceedings taken in the suit." It was further held in the above case that the withdrawal would not be allowed if it results in perpetuating a fraud or injustice. The Court may in such circumstances decline the petitioner to withdraw the suit. The Court may also in appropriate cases where it comes to the conclusion that the purpose of withdrawal of proceeding is only to prevent the Court from passing an order undoing a wrong or an injustice done to party or the withdrawal would deprive the Government or a public functionary to receive or recover the public dues, or the withdrawal would otherwise defeat the ends of justice, decline the prayer for withdrawal. 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. Therefore, it cannot have the effect of setting aside decrees and order of Courts below which remained intact after appeal of the petitioners was dismissed by this r Court after having become infructuous. The permission to withdraw can only be granted respecting a matter which is pending before a Court. What was pending before this Court, was the appeal of the petitioners bearing Civil I Appeal No,209 of 1988 which was dismissed vide order dated 8-6-1991 by this Court as having become infructuous. It is also reflected from the judgment dated 26-3-1980 of the High Court rendered in the first round of litigation that an application under rule 1(2) of Order XXIII, C.P.C. Was made for the withdrawal of the suit during the pendency of R.S.A. No,36 of 1964 which was not allowed and the learned Single Judge gave sound reasons for the same. It would be appropriate to reproduce those reasoning's which are as under: "5. Learned counsel on his behalf initially expressed their intention to withdraw the suit without a condition, but realizing that the judgment and the decrees passed against the appellant would in no circumstance be washed off on account of such withdrawal, they pressed into service the application made by them under Rule 1(2) of Order XXIII, C.P.C. They referred to a substantial number of case-law but they could not show that by the withdrawal of the suit they would be successful in doing away with the effect of the judgments and decree passed by the two Courts against the appellant.
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6. Where the Court is satisfied that a suit must fail by reason of some formal defect or 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. The expression 'formal defect' connotes defects of various kinds not affecting the merits of the case. The rule requires that the Court must be satisfied that the suit must fail by reason of some formal defect, otherwise the mere objections raised by the defendant are not sufficient for making an application under the rule. A misjoinder of a party may in some cases be a good cause for withdrawing the suit, but the defect, in the instant case, is not such which would result in the decision of the case against the appellant. Sheikh Shamas-ud-Din was not impleaded as a party in the suit, but because he was said to be a mere vendor, he was, therefore, not a person interested in the result of the suit, and thus not a necessary party, nor even a proper party. Both the two Courts have also held that the suit was not defective because of his non joinder as a defendant. Rule 9 of Order I, C.P.C. Provides that no suit…
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