Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2026 LHC 4559
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Raheel Kamran)
Parties: Ghulam Hussain vs Additional District & Session Judge etc.
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Raheel Kamran), officially reported as 2026 LHC 4559. In this matter between Ghulam Hussain and Additional District & Session Judge etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Raheel Kamran) DECISION DATE: 30-06-2026 CASE DETAILS: Misc. Writ 19357/26 ============================================================ Stereo H C J D A 38. Judgment Sheet IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
Writ Petition No.19357 of 2026
Ghulam Hussain
Versus
Additional District & Sessions Judge, Wazirabad and others
JUDGMENT
Date of hearing 30.06.2026 Petitioner by: Ch. Irshadullah Chattha, Advocate. Respondent No.3 by: Nemo. Respondent No.4 by: Mr. Qamar-uz-Zaman Cheema, Advocate.
RAHEEL KAMRAN , J.: Through this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has assailed order dated 20.02.2026, whereby the Additional District Judge, Wazirabad, while dismissing the civil revision filed by the petitioner, affirmed order dated 23.06.2025 passed by the Civil Judge, Wazirabad, whereby the suit filed by respondent No.3 was dismissed as withdrawn with permission to file afresh. 2. Muhammad Arshad respondent No.3 instituted a suit for declaration along with possession and permanent injunction against the petitioner (defendant No.1 in the suit ) and Khalid Hussain respondent No.4 (defendant No.2 in the suit) . The suit was contested by the petitioner whereas respondent No.4 was proceeded against ex parte. After framing of issues, the case was at the stage of evidence of the plaintiff when he got recorded his statement to the effect that there were certain lega l defects in the suit and that the plaint had been drafted on the basis of wrong facts and contrary to his instructions , therefore, he sought withdrawal of the suit with permission to file afresh. On the basis of such statement, the trial court vide W.P. No.19357 of 2026 2
order dated 23.06.2025, dismissed the suit as withdrawn with permission to institute a fresh suit, subject to payment of costs of Rs.3,000/ - and subject to all legal exceptions and limitation . The petitioner assailed the said order through civil revision, which was dismissed vide impugned order dated 20.02.2026. Hence, this petition. 3. Learned counsel for the petitioner contends that the statement of the plaintiff on the basis whereof the trial court allowed withdrawal of the suit with permission to file afres h, was vague and did not disclose any specific formal defect or sufficient ground within the contemplation of Order XXIII Rule 1(2) of the Code of Civil Procedure, 1908 (CPC). It is argued that the plaintiff merely stated that there were some legal defects and that the plaint had been drafted on wrong facts, but neither identified the alleged defect nor demonstrated how the suit was likely to fail by reason thereof. Learned counsel submits that it is well settled that where a plaintiff seeks permission to institute a fresh suit, the Court is required not only to examine the ground urged by the plaintiff but also to record reasons showing its satisfaction. According to learned counsel, the order passed by the trial court is not a speaking order and, therefore, the revisional court fell in error while maintaining the same. To substantiate his contentions, learned counsel for the petitioner has placed reliance on the cases of “Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others” (PLD 2003 SC 979) , “Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs. and others” (2013 SCMR 464) , “ Khawaja Bashir Ahmed and sons Pvt. Ltd. v. Messrs Martrade Shipping and Transport and others” (PLD 2021 SC 373) and “Muhammad Ashraf and others v. Muhammad Khan and others” (2025 SCMR 1066) . Learned counsel emphasizes that as the impugned order granting permission suffers from want of reasons, it follows that the suit must be treated as having been withdrawn simpliciter. 4. Learned counsel for respondent No.4, on the other hand, has supported the impugned orders for the reasons recorded therein. Respondent No.3, however, has not appeared either in person or through counsel. The record reflects that on 27.04.2026 respondent No.3 had appeared in person W.P. No.19357 of 2026 3
and sought time to engage a counsel. Thereafter, on 29.06.2026, i.e. a day prior to the date fixed for hea ring, a written request for adjournment was received on his behalf, the sole ground whereof was that the “undersigned counsel for the respondent No.3 is unable to appear this Honourable Court due to illness, so kindly fix any other date for hearing ”. Such a request does not commend itself to acceptance for more than one reason. Firstly, the plea of illness has been couched in the vaguest possible terms inasmuch as neither the nature of the ailment has been disclosed nor is the request supported by an y medical certificate or other material lending credence to the asserted incapacity to appear. Secondly, the request having been received a day in advance, sufficient time was available to respondent No.3 to make alternate arrangements, either by engaging another counsel or by appearing in person to defend his interest, more so when he had already availed an opportunity to engage a counsel at an earlier stage. Adjournment cannot be claimed as a matter of right and a bald assertion of ailment, unsubstantiate d by any supporting material, does not constitute sufficient cause for deferring the hearing. Accordingly, the written request for adjournment sent on behalf of respondent No.3 is declined. 5. I have heard learned counsel for the petitioner and respondent No.4 and have perused the record with their able assistance. Before examining the controversy, it would be advantageous to reproduce the statement made by respondent No.3/plaintiff before the trial court, which reads: بیان کیا کہ دعوی ہذا میں چند قانونینقائص ہیں اور دعوی ہذا میری ہدایات کے برعکس غلط حقائق کی بنیاد پر دائر کیا گیا۔ استدعا ہے کہ دعوی ہذا بصیغہ واپسی مع اجازت جدید نالش خارج فرمایا جائے اور کورٹ فیس مبلغ -/15000 روپے مجھے واپس کی جائے۔ On the basis of the above statement, the trial court pas sed the following order:- “At the very outset, plaintiff has recorded his statement to the effect that there are some legal & technical faults in the suit and he wants to file a fresh suit after removing the legal & technical faults. He requested that instant suit may kindly be dismissed as withdrawn with permission to file fresh one and he also requested for withdraw of Court fee valuing Rs.15000/-. W.P. No.19357 of 2026 4
Defendant No.1 through his representative shown no objection if the permission be granted to file fresh suit to the plaintiff. Even otherwise, this court is satisfied that plaintiff has shown valid reason for withdrawal of the suit with permission to file fresh one and there is no legal hurdle in doing so. Therefore, in the light of statement of plaintiff an d in the best interest of justice, this suit is dismissed as withdrawn, with permission to file a fresh suit, subject to payment of costs of Rs.3,000/- and subject to all legal exceptions & limitation. Plaintiff is also entitled to withdraw the court fee o f Rs.15,000/- submitted by him on 13.03.2024 as per order of the Court.- - - -”
6. The procedure and grounds for the withdrawal of suits have been provided in r ule 1 of Order XXIII of the Code of Civil Procedure (CPC), which reads 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. (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 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. (4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.”
The question requiring determination in the instant matter is not whether a plaintiff may withdraw his suit. The real question i s whether, in the facts of the present case, permission to institute a fresh suit could have been granted by merely recording that the Court was satisfied, without discussing the nature of the alleged defect or the ground on which such satisfaction was founded. This distinction between a mere withdrawal and a withdrawal with W.P. No.19357 of 2026 5
liberty to file afresh is of vital importance as w ithdrawal simpliciter and withdrawal with permission to institute a fresh suit do not stand on the same footing. The former is ordinarily referable to the plaintiff’s desire not to prosecute his claim further; the latter has the legal consequence of protecting him from the statutory bar contained in rule 1(3) which may otherwise operate against a second suit on the same cause of action. It is for this reason that the Legislature has conditioned such permission upon the satisfaction of the Court that the 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. 7. Order XXIII rule 1(2) CPC confers discretion on the Court, but such discretion is judicial and not arbitrary. Satisfaction of the Co urt is undoubtedly the statutory requirement; however, such satisfaction cannot remain confined to the mind of the Court. It must be reflected from the order itself. A mere recital that the Court is satisfied, without disclosure of the reasons which persuaded it to reach such satisfaction, does not fulfill the requirement of a speaking order. The order must show that the Court applied its mind to the defect or ground pleaded by the plaintiff and then formed an opinion whether the same fell within clause (a) or cl ause (b) of sub-rule (2). This requirement becomes more important where the case has already crossed the stage of pleadings and issues and is fixed for evidence. 8. In the instant case, the plaintiff stated that the suit contained “some legal defects” and that the plaint had been filed on the basis of wrong facts and contrary to his instructions. The trial court recorded the statement and noticed that the representative of defendant No.1 had no objection if permission was granted. It then observed that the plaintiff had shown a valid reason and that there was no legal hurdle in allowing the request. However, the order does not identify the alleged legal or technical defect , nor does it state whether such defect was formal in nature and likely to cause the suit to fail; nor does it examine whether the ground pleaded by the plaintiff constituted “other sufficient grounds” within the meaning of rule 1(2)(b) of Order XXIII CPC. The trial court was required to give reasons for the conclusion. W.P. No.19357 of 2026 6
9. The absence of objection by the representative of defendant No.1 could not, by itself, dispense with the statutory duty of the Court. Permission to institute a fresh suit is not granted merely because the opposite party does not object. The Court has to satis fy itself independently that the case falls within the parameters of Order XXIII rule 1(2) CPC. A concession or lack of objection by the opposite side may be a relevant circumstance but it cannot substitute the judicial satisfaction contemplated by law. Si milarly, use of the expression “in the best interest of justice” cannot cure the absence of reasons, for justice according to law demands that the reasons for exercise of discretion must be discernible from the order. This aspect appears to have been overl ooked by the courts below. The trial court granted permission without recording reasons. The revisional court, instead of examining whether the order of the trial court disclosed the requisite satisfaction supported by reasons , simply affirmed the same. Co nsequently, both orders suffer from material illegality and irregularity in the exercise of jurisdiction and as such are not sustainable. 10. In the above backdrop, the fundamental question is as to the course to be adopted once it is found that the order allowing to withdraw the suit with permission to file afresh is not sustainable for want of reasons. In this regard, guidance can be drawn from the case of “Karim Gul and another v. Shahzad Gul and another” (1970 SCMR 141), wherein upon request of the plaintiff to withdraw the suit with permission to file a fresh suit , the trial court allowed the withdrawal of the suit but refused to grant permission for bringing a fresh suit on the same cause of action, on the ground that sufficient cause had not been made out for that purpose. The plaintiff of that case subsequently filed a fresh suit which was held by the trial court to be barred under the provisions of Order XXIII rule 1 sub -rule (3) of the CPC. On appeal, however, the Additional District Judge concluded that permission could not be granted to withdraw the suit while refusing permission to bring a fresh suit, as the two were indivisible. The view of the Additional District Judge was upheld by the Supreme Court. The relevant excerpt from the said judgment is reproduced below for the facility of reference: W.P. No.19357 of 2026 7
“On appeal, however, the Additional D istrict Judge of Mardan came to a contrary conclusion. He was of the view that permission could not be granted to withdraw the suit while refusing permission to bring a fresh suit, as the two were indivisible. The order of the trial Court was, accordingly, reversed and the suit for possession was decreed. In second appeal a learned Single Judge of the High Court, after reviewing a number of decisions, came to the conclusion that under sub-rule (2) (b) of rule 1 of Order XXIII of the Code of Civil Procedure the Court has to treat the application for the withdrawal of the suit and permission for bringing afresh suit on the same cause of action as one and indivisible. It must either reject or accept both the prayers in such an application. It is not open to it to allow the withdrawal of the suit and yet refuse permission to institute a fresh suit in respect of the same subject-matter. The learned Single Judge was also of the view that in the circumstances the learned Civil Judge had acted without jurisdiction in refusing permission to bring a fresh suit and, therefore, his order of the 6th of October 1960, was a nullity in the eye of the law, as it was made without jurisdiction. This judgment has been upheld in Letters Patent Appeal by a short order dismissing the appeal in limine. The defendants in the suit now seek special leave to appeal and it is contended on their behalf that a question of law of some general importance has been raised which should be examined by this Court. Learned counsel also urges tha t there is some conflict of decisions on this point in the High Courts, but it appears to us that the view taken by the High Court finds support from a decision of this Court in the case of Haji Abdur Rashid Sowdagar v. S. M. Lolita Roy (P L D 1959 S C (Pa k.) 281) where Munir, C. J. pointed out the differences between sub -rules (1) and (2) of rule 1 of Order XXIII of the Code of Civil Procedure, and opined that under sub -rule (2) "the withdrawal is complete the moment the order to that effect is recorded an d the right to bring a fresh suit follows from the withdrawal so permitted".”
The principle laid down in Karim Gul case was followed by the Supreme Court in Muhammad Yar case (supra) while also quoting the above reproduced portion and following principle was laid down:- “Upon the survey of the above cited (quoted) case law , it is hereby enunciated that where the plaintiff has applied for the withdrawal of his suit or has sought the abandonment of his claim or a part thereof, with the permission of the Court to bring a fresh suit, it is within the authority of the Court obviously W.P. No.19357 of 2026 8
within the parameters of sub -rule 2(a)(b) to either decline such request or allow the permission. In the eventuality of refusal the suit should not be dismissed simpliciter, rather the request for permission alone be turned down and the suit should continue, thus obviously the plaintiff shall have a right to choose his further course of action and to decide whether he should withdraw the suit or not . In the other eventuality, there does not seem any problem except that the Court has to record its reasons justifying the permission, which in any case s hall be so recorded in either of the eventuality as afore-stated.” (Emphasis supplied by this Court).
The above ratio governs the controversy in the case in hand. It preserves the distinction between a plaintiff’s request to withdraw the suit simpliciter and a composite request to withdraw the suit with permission to institute a fresh one. The latter cannot be split to the prejudice of the plaintiff by treating the withdrawal as absolute while denying the permission sought. Thus, merely because the order granting permission suffers from want of reasons, it does not follow that the suit must be treated as having been withdrawn simpliciter. Such a course would be contrary to the principle laid down in the above referred judgments. The plaintiff ha d sought withdrawal with permission to file afresh . H e had not, after refusal of such permission, elected to withdraw the suit simpliciter. 11. The other judgments relied upon by learned counsel for the petitioner do not justify a different conclusion. In the case of Haji Muhammad Boota 1, the litigation had already culminated in decisions on merits after recording of evidence and such decisions had been maintained up to the High Court. Withdrawal was thereafter sought before the Supreme Court owing to plaintiff’s success in the subsequent revenue proceedings. It was in that context the Supreme Court held that judgments and decrees rendered by competent courts after adjudication on merits could not be washed away merely by withdrawal of the suit or appeal and that what could not be achieved directly could not be allowed to be achieved indirectly. However, in the instant case, the suit was still pending at the stage of
1 PLD 2003 SC 979 W.P. No.19357 of 2026 9
plaintiff’s evidence when request was made for withdrawal with permission to file a fresh suit . Facts of Khawaja Bashir Ahmed 2 case are also distinguishable. In that case, the plaintiff sought withdrawal of the suit to the extent of one of the defendants with permission to in itiate proceedings again when necessity arose. Permission to sue again was refused whereas the suit was dismissed as withdrawn to th e extent of said defendant . The Supreme Court, treating the request as one falling under clause (b) of sub -rule (2) of Rule 1 of Order XXIII CPC, held that the facts disclosed in the application did not constitute a ground for grant of permission. In the case in hand, however, the request for withdrawal was premised on the ground of formal defect falling under the clause (a) of sub-rule (2) as well as other grounds such as the plaint had not been drafted in line with plaintiff’s instructions. The judgment in the case of Muhammad Ashraf and others 3 is likewise distinguishable. In that case, the suit had already been dismissed after adjudication. During appeal, an application under Order XXIII Rules 1 and 2 CPC was moved for withdrawal of the suit on the basis of an alleged formal defect. The Supreme Court upheld interference with the order granting permission to file a fresh suit, primarily for the reason that a verdict had already been passed by the trial court after considering and evaluating evidence on record and such verdict could be effaced onl y by setting it aside in accordance with law. Relying upon Haji Muhammad Boota (supra), the Supreme Court observed that parties could not be allowed to do away with judgments rendered against them by simple withdrawal of the suit. In the case in hand, no s uch verdict on merits existed when the plaintiff made the statement before the trial court. The said judgment, therefore, does not govern the present case so as to non-suit the plaintiff at this stage. 12. The principle deducible from the above discussion may be stated thus:- permission to withdraw a suit with liberty to institute a fresh suit is not to be granted as a matter of course ; the plaintiff must disclose a formal defect or other sufficient ground; the Court must examine whether
2 PLD 2021 SC 373 3 2025 SCMR 1066 W.P. No.19357 of 2026 10
such defect or ground falls within the scope of Order XXIII Rule 1(2) CPC; and the order must contain reasons reflecting such satisfaction. If the Court is not satisfied, it should refuse permission and allow the suit to proceed, leaving the plaintiff to decide wh ether he still wishes to withdraw the suit without such liberty. However, where permission has been granted without reasons, the order cannot be sustained but the consequence is not automatic conversion of the order into one of withdrawal simpliciter. 13. Applying the above principles, the impugned order s cannot be sustained. Therefore, this petition is allowed. Order dated 23.06.2025 passed by the Civil Judge, Wazirabad and order dated 20.02.2026 passed by the Additional District Judge, Wazirabad are set aside. As a consequence, the suit filed by respondent No.3 shall be deemed to be pending before the trial court at the stage where it was fixed on 23.06.2025. The trial court shall consider the request/statement of respondent No.3 for withdrawal o f the suit with permission to file afresh, if the request is still pressed by the plaintiff , strictly in accordance with law, by passing a speaking order. If such permission is refused, the suit shall proceed in accordance with law unless the plaintiff the reafter elects to withdraw it simpliciter. The parties shall appear before the trial court on 22.07.2026. A copy of this judgment be sent to the trial court forthwith.
(RAHEEL KAMRAN) JUDGE Approved for reporting.
JUDGE
Azhar*