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Official Citation: 2025 LHC 4210
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-06-19
Parties: Mst. Bakhan, etc vs Pir Bakhsh, etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-06-19, officially reported as 2025 LHC 4210. In this matter between Mst. Bakhan, etc and Pir Bakhsh, 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.
Case cited as 2025LHC4210
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad, Malik Javid Iqbal Wains Title: Mst. Bakhan, etc vs Pir Bakhsh, etc Case No.: Review Application No.3 of 2015. In R.S.A. No.59 of 1989 Date of Judgment:2025-06-19 Reported As: 2025 LHC 4210 Result: Application Allowed
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J. Through this application, the applicants seek review of judgment & 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 & 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 & 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 & 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
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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: 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.
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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: 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: 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
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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 clause (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."
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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 XXUUU, 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:
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"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 another 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
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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…
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