IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE MUNIB AKHTAR

CIVIL APPEAL NO.782 OF 2014

(On appeal from the judgment dated 11.03.2014
of the Lahore High Court, Lahore passed in Civil
Revision No.260 of 2007.)

Khawaja Bashir Ahmed & Sons Pvt. Ltd. … Appellant

vs

M/s Martrade Shipping & Transport etc. … Respondents

For the Appellant : Malik M. Rafiq Rajwana, ASC

For the Respondents : Nemo.

Date of Hearing : 14.01.2021

JUDGMENT

Munib Akhtar, J.: At the conclusion of the hearing it was

announced that the appeal was being dismissed. The following are
our reasons for having done so.

2. Learned counsel for the appellant submitted that (sometime

in 2005) the appellant filed a suit in the civil courts at Multan
against the two respondents as defendants. It is stated that the
suit is still pending. On or about 15.02.2007 the appellant filed an
application in the suit. It was stated to be under O. 23, R. 1 CPC,
and sought the withdrawal of the suit against the respondent No. 2
in the following terms:
“Application under Order XXIII Rule 1 read with
Section 151 CPC

Respectfully Sheweth

1. That the abovementioned suit is pending and is

fixed for today before this Hon’able Court.

2. That the applicant/plaintiff for the time being

doesn’t want to proceed further against
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Defendant No.2 M/s Al-Hamd International

Container Terminal (Pvt) Ltd. The plaintiff
reserves its rights to sue the said defendant
whenever the necessity so arises.

It is therefore respectfully prayed that the

applicant/plaintiff may be permitted to withdraw
the suit to the extent of Defendant No.2 with
permission to initiate proceedings in accordance
with law afresh, when the necessity so arises.”

3. On this application the learned civil Judge made an order on

15.02.2007 dismissing the suit as withdrawn against the said
respondent, but disallowed the filing of a fresh suit. The appellant
filed a revision petition against this order in the High Court, which
was dismissed by means of the impugned order dated 11.03.2014.
Leave to appeal was sought, and was granted vide order dated
17.04.2014 to consider whether, as contended, the impugned
order was contrary to the decision of this Court reported as
Muhammad Yar (dec’d) and others v Muhammad Amin (dec’d) and
others 2013 SCMR 464.

4. Learned counsel submitted that the application for

withdrawal, though stated to be under Rule 1 of O. 23, was in
substance in terms of Rule 2(b) thereof. The latter provision allows
the court to permit a plaintiff, if sufficient grounds are disclosed, to
withdraw the suit with permission to file a fresh one. Learned
counsel contended that if at all the learned civil Judge had
concluded that no such ground was disclosed he ought to have
dismissed the application. It was submitted, relying in particular
on the aforementioned decision and Karim Gul and another v
Shahzad Gul and another 1970 SCMR 141, that an application of
the sort moved by the appellant was indivisible. It had either to be
allowed as a whole or dismissed as such. It could not be broken
into parts so as to allow one (i.e., the withdrawal of the suit) but
not the other (i.e., permission to file a fresh suit). Learned counsel
submitted that he had himself appeared before the learned civil
Judge, who had not announced his order at the conclusion of the
hearing but later (it appears during the course of the day). If the
order had been made in his presence, learned counsel submitted,
he would have withdrawn the application. On queries from the
Court as to why a review application was not filed before the trial
Court, or whether the position as stated before us was set out in
CA.782/2014 -:3:-

the revision petition, learned counsel candidly submitted that such

was not the case. It was prayed that the appeal be allowed or at the
very least the application filed before the civil Court be treated as
pending so as, as we understood it, to enable the appellant to
withdraw the same there.

5. We have considered the submissions made and the case law

relied upon. In Muhammad Yar (dec’d) and others v Muhammad
Amin (dec’d) and others 2013 SCMR 464 (leave refusing order) Rule
2 of O. 23 is fully examined (see, especially, para 4 at pp. 471-2)
and the case law is also considered (including the other decision
relied upon before us). The facts of the case were that an
application was moved in a suit seeking its withdrawal to enable
the plaintiff to pursue his claim by way of a writ petition in the
High Court, and permission was also sought to file a fresh suit.
The suit related to pre-emption and certain orders made by the
revenue authorities had been challenged therein. Those orders
were now to be challenged by means of the writ petition. On this
application the suit was dismissed as withdrawn, with no order
being made on the permission sought to file a fresh suit. The writ
petition was filed, and resisted on two grounds. One was that since
the suit had been ordered as withdrawn simplicitor, the writ
petition itself was barred by reason of Rule 3 of O. 23. Both
grounds (the other being not relevant for present purposes) were
found persuasive, and the petition was dismissed. Leave to appeal
was sought, but was refused by means of the cited decision. In
seeking leave it was sought to be argued that since the trial Court
had not, as such, refused permission to file a fresh suit, there was
a “necessary implication [that] it shall be presumed that the
permission to file the fresh suit was granted” (pg. 469). This
submission was, on the facts of the case, not accepted (see para 6,
at pp. 475-6). As is obvious, the facts of this case were rather
different from those before us.

6. In the other case, Karim Gul and another v Shahzad Gul and
another 1970 SCMR 141 (leave refusing order), the facts were that
a civil suit was filed by the respondent No. 1 in the courts at
Mardan for possession of certain land, and injunctive relief was
also sought against the defendants (petitioners before this Court).
The suit was resisted on various grounds, of which the one
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relevant for present purposes was that the respondent had earlier
filed a civil suit in Multan but had applied to withdraw the same
with permission to file a fresh suit. The civil Court had (by order
dated 06.10.1960) dismissed the suit as withdrawn but refused
permission to file a fresh suit. It was contended that the
subsequent suit (i.e., the one filed in Mardan) was therefore barred
in terms of Rule 3. This contention was accepted and the suit
dismissed. The respondent appealed. The learned first appellate
Court held that an application under O. 23, R. 2(b) (under which
provision the application had been made in the earlier suit) was an
indivisible whole and ought to be allowed or dismissed as such. On
this basis it was held that the earlier order (of 06.10.1960) was
unlawful and a nullity and hence the subsequent suit was not
barred in terms of Rule 3. In the event, the appeal was allowed and
the respondent’s suit was decreed. The petitioners’ appeal to the
High Court failed (for the same reason as had found favor with the
first appellate Court) and when the matter reached this Court,
leave to appeal was likewise refused by means of the cited decision.
Again, the facts of the cited case were rather different from those at
hand.

7. Having considered the matter, we are of the view that the law
has been correctly laid down in Muhammad Yar (dec’d) and others
v Muhammad Amin (dec’d) and others 2013 SCMR 464. However,
we would add a gloss to that decision. After considering the case
law, it was there held as follows (pg. 475; emphasis supplied):

“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 with 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 shall be so
recorded in either of the eventuality as afore-stated.
However, the problem is faced where the request is not
declined in express and clear words, yet the suit is 'dismissed
as withdrawn' without recording the reasons; though such an
CA.782/2014 -:5:-

order' shall be bad for failure to assign the reasons and if not
assailed on that ground by the other side it shall attain
finality, but in the situation it should be implied, considered
and deemed that the Court has found it to be a fit case for the
permission and has granted the plaintiff permission to file a
fresh suit, because this is the [safer] course, which should be
followed in the interest and promotion of justice, otherwise
serious prejudice shall be caused to the plaintiff who shall
have to face the bar of sub-rule (3) and shall be left in a
flummox.”

8. At first sight, the passage extracted above (and especially the

portion emphasized) appears to favor the appellant. However, when
a closer look is taken a different conclusion emerges. Now, clause
(a) of Rule 2 allows permission to be granted to file a fresh suit if
the court is satisfied that the “suit must fail by reason of some
formal defect”. Clause (b) allows for such permission if “there are
other sufficient grounds”. We are of course concerned with the
latter provision. In our view, for the provision to be at all applicable
it is necessary that the facts disclosed in the application seeking
permission must, in law, amount to a “ground”. It is only then that
the provision becomes applicable, requiring the court to satisfy
itself as to the sufficiency (or lack) of the stated ground. The
observations of this Court in the cited decision (and in particular
in the passage extracted above) are necessarily premised on this.
However, if what is stated in the application is not a “ground” at all
then obviously no question would arise of the court having to
consider whether there is any sufficiency or lack thereof. When the
application in the present case is considered all it stated was that
the appellant “for the time being doesn’t want to proceed further
against” the second respondent, and that the appellant “reserves
its rights to sue the said defendant whenever the necessity so
arises”. This is, in law, no ground at all. A plaintiff cannot be
allowed to file his suit and then, at his sweet will and pleasure, exit
the litigation only to enter the arena again as and when he pleases.
If this is permissible under Rule 2(b) then that effectively puts paid
to the consequences envisaged by Rule 3. And, it must be
remembered, there would be nothing, in principle, preventing a
plaintiff from doing this ad nauseam. This cannot be the true
meaning and scope of Rule 2(b). It is only when the facts disclose
what can, in law, be regarded as a “ground” that it becomes
necessary for the court to consider the sufficiency (or lack) thereof.
CA.782/2014 -:6:-

Here, there was no such thing. The application itself, on the face of
it, purported to have been moved under Rule 1. Nothing was said
before the learned trial Court as would have required it to conclude
otherwise, nor was any attempt made then or later to withdraw the
same. The order made by the Court was unexceptionable and in
accordance with law. It did not warrant any interference, and the
learned High Court was right to dismiss the revision petition.
Likewise, there was no merit to this appeal and it accordingly stood
dismissed as noted above.

9. Before concluding, we may note that at the commencement

of the hearing we were informed that the respondents (who did not
appear) had been served by way of publication. They were ordered
to be proceeded against ex parte. There will be no order as to costs.

Judge

Judge

Judge

Islamabad,
14.01.2021
Naveed Ahmad/*
Approved for reporting