2026 SCLR 19
Other citations: 2025 SCP 473
[Supreme Court of Pakistan]
Present: Shahid Bilal Hassan and Shakeel Ahmad, JJ
Sohail Islam and another --- Petitioners
versus
Saadullah Khan and others --- Respondents
C.P.L.A. No. 5071/2025, decided on 5th January, 2026.
(Against the judgment dated 07.10.2025 passed by the Peshawar High Court, Peshawar in C.R. No. 80-P of 2017)
HEADNOTE by Ali Hamza, Advocate
Civil Procedure Code (V of 1908) ---
--- O. XXIII, R. 1 --- Withdrawal of suit --- Suit “dismissed as withdrawn” --- Effect --- Where an earlier suit was “dismissed as withdrawn” and was withdrawn without seeking permission of the Court to institute a fresh suit on the same cause of action, such withdrawal is a withdrawal simpliciter and squarely attracts the bar contained in Order XXIII Rule 1(3), CPC, thereby precluding the institution of a subsequent suit in respect of the same subject-matter. [A]
Hassan Ullah Khan Afridi, Advocate Supreme Court for the petitioners.
For the respondents: N.R.
Date of hearing: 5th January, 2026.
ORDER
SHAHID BILAL HASSAN-J: The instant Civil Petition for Leave to Appeal has arisen out of the judgment dated 07.10.2025 passed by the Peshawar High Court, Peshawar in Civil Revision No. 80-P of 2017 filed by Saadullah Khan (“respondent No.1”), whereby the revision petition filed by respondent No.1 was allowed, the concurrent judgments of the Courts below were set aside, and the civil suit instituted by the present petitioners was dismissed.
2. Facts, in concision, leading to the filing of the instant petition are as such that the father (now deceased) of the present petitioner(s) instituted a suit for declaration, perpetual injunction, and in the alternate, for possession (the “Subsequent Relief”) before the Learned Civil Judge, Kohat, contending that he was the lessee of the disputed shop measuring 180 square feet, situated at Jail Road, Kohat (the “disputed shop”) under Tehsil Municipal Administration (TMA), Kohat. It was pleaded that he had neither transferred nor sub-let the disputed shop and that the proceedings culminating in the execution of a registered lease deed dated 01.07.1995 (the “lease deed”) in favour of respondent No.1 were illegal, void, and the result of fraud, thus liable to be set aside.
3. Respondent No. 1 contested the suit through a written statement, denying the allegations. After recording of pro and contra evidence, the learned Trial Court decreed the suit in favour of the plaintiff vide judgment and decree dated 24.09.2014. The appeal preferred by respondent No.1 against the above-mentioned judgement and decree was dismissed by the learned Additional District Judge, Kohat vide judgment dated 17.10.2016. Thereafter, Respondent No. 1 invoked the revisional jurisdiction of the High Court against the judgment of the learned Additional District Judge, Kohat which was allowed and the civil suit of the petitioner(s) father was dismissed, hence the present Civil Petition for Leave to Appeal before this Court.
4. The record further reveals that prior to instituting the aforesaid suit, the petitioners’ father had earlier filed Civil Suit No. 298/1 (the “Original Suit”) against the same parties, challenging the same lease deed in respect of the disputed shop. The said suit was dismissed as withdrawn on 30.05.2009 without seeking permission of the Court to institute a fresh suit on the same cause of action. No challenge was laid to the said order, which has admittedly attained finality.
5. It is the case of the petitioner(s) that the Original Suit was withdrawn on the basis of a private compromise between the parties and that the learned Trial Court had failed to reflect this fact in its order dated 30.05.2009 (the “withdrawal order”) which mentions that the suit has been “dismissed as withdrawn” simpliciter. It is also urged that such omission attracts the application of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (the “CPC”), and that in the absence of an express finding regarding unconditional withdrawal, the withdrawal should be deemed to be conditional, thereby not barring the subsequent suit.
6. Heard. Record perused.
7. With regards to the contention that the learned Trial Court omitted to record the compromise, a perusal of the record unequivocally shows that no compromise was ever placed before the Court at the time when the earlier suit was withdrawn. Neither the application for withdrawal nor any accompanying document disclosed the terms of any alleged settlement. In absence of such material, the Court could not have recorded a compromise which was neither pleaded nor brought on the judicial record, as the Court is bound to adjudicate only on the basis of what is formally presented before it. Furthermore, the withdrawal order was passed in the presence of the parties and remained unchallenged despite the availability of adequate statutory remedies. The petitioners, having acquiesced in the said order and allowed it to attain finality, cannot now be permitted to question its legal consequences or to re-characterize an unconditional withdrawal as a conditional one. The law does not countenance such an approach. This argument, therefore, is without substance and is hereby repelled.
8. The central question requiring determination is whether a subsequent suit is maintainable where an earlier suit on the same cause of action was withdrawn simpliciter without seeking permission to institute a fresh suit, within the meaning of Order XXIII Rule 1, CPC.
9. The record unmistakably shows that the alleged compromise was never made part of the judicial record, nor were its terms disclosed to the Court at any stage. The application seeking withdrawal of the earlier suit was completely silent as to any condition, reservation, or liberty to institute a fresh suit on the same cause of action. No statement was recorded, nor was any order passed, indicating that the withdrawal was subject to any qualification. A withdrawal founded upon a private arrangement which neither receives judicial recognition nor is reflected in the order of the Court cannot, in law, be treated as anything other than a withdrawal simpliciter. Such an unconditional withdrawal squarely attracts the bar contained in Order XXIII Rule 1(3), CPC, thereby precluding the institution of a subsequent suit in respect of the same subject-matter. The same proposition has been dealt with by this Court in judgment1 wherein it was held as under:
“10. Keeping the foregoing legal provision in view, there are some established factual points of the case that may be noted first. By the order dated 30.01.1957 Muhammad Nawaz withdrew his suit unconditionally without seeking permission to file a fresh suit. An oral compromise between Muhammad Nawaz and the defendants was cited by the former as the basis of the withdrawal of his suit but neither the terms of the compromise were stated before or recorded by the learned Trial Court nor was any defendant examined before the Trial Court to state or admit the terms of any compromise. The impugned mutation No.1147 dated 21.03.1951 remained in existence notwithstanding the compromise. Muhammad Nawaz did not file any proceedings to enforce the terms of his compromise. In other words, the impugned mutation and the unconditional withdrawal of the suit satisfied the oral compromise and Muhammad Nawaz lived with it till his death in the year 1987.
11. The amended plaint filed by the appellants claimed that in the oral compromise Muhammad Shafi and his four sisters accepted the impropriety of the impugned mutation No.1147 dated 21.03.1951; that they also returned possession of the land inherited by them from the legacy of Faqir Muhammad deceased to Muhammad Nawaz. Even if those statements of fact are assumed to be correct, it may be observed firstly, that merely holding the possession of land cannot confer its title through prescription. [Ref Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR 2063)]. Secondly, the inaction and acquiescence of Muhammad Nawaz to challenge the impugned mutation No.1147 dated 21.03.1951 for 30 years is evidence that it complied with his compromise. Thirdly, in the year 2000, when the appellants' suit was filed, neither of the parties to the oral compromise survived to prove its terms. At best the appellants could bring hearsay evidence and that too after a delay of 43 years. In the said circumstances, it is a futile argument by the learned counsel for the appellants to ask for grant of an opportunity to the parties to lead evidence about the terms of the oral compromise. These facts establish that the withdrawal of the earlier suit by Muhammad Nawaz was unconditional or that the impugned mutation did not infringe any terms of the compromise claimed by him with the predecessor of the respondents. In the circumstances, the latter suit filed by the appellants on the same cause of action is barred under Order XXIII, Rule 1(3), C.P.C.”
This Court while dealing with a similar issue in another judgment2 has also held as under:
“6. We shall first deal with the legal objections taken by the learned counsel for the respondents. The petitioner had filed C. P. No. D- 2602/2014 which was "not pressed" on 19th August 2014 and then filed the suit on 26th August 2014 (which was converted into a petition) wherein the earlier petition filed by the petitioner was mentioned in paragraph 13 by stating that, "the same has been withdrawn by the Plaintiff as fresh cause of action has accrued to the Plaintiff." The respondents had objected to the subsequent filing of the suit-petition as the requisite permission had not been obtained from the court when it was not pressed and dismissed. The impugned order took notice of this fact, but the learned judges did not non-suit the petitioner on this ground even though he could have been because sub-rule (3) of Rule 1 of Order XXIII of the Code stipulates that where the plaintiff withdraws from a suit without being given permission to institute a fresh suit in respect of the same subject-matter or such part of claim he would be precluded from doing so.”
Similarly, in judgment3 it has been held as under:
“6. From the above, it seems, when the application was taken up by the Court, the counsel appearing for the petitioners for whatever reasons it may be, did not press the application, may be that the permission was being declined by the Court and he promptly and immediately decided to change his course of action and the strategy and take resort to simple withdrawal of the suit; but the fact remains that the counsel in clear and unequivocal terms pleaded to the Court and got his statement recorded, that the petitioners would not like to pursue the suit and would like to withdraw. This is a withdrawal simpliciter as envisaged and covered by the provisions of Order XVIII, Rule 1(1), C.P.C., without there being any nexus and recourse to sub-rule (2)(a)(b). Thus, in view of the above peculiar circumstances of this case, the petitioner could not file a fresh civil suit to challenge the same decision/verdicts of the Revenue Courts through which their pre- emption suit was discarded.”
In the same vein, in Malik Shahid Mehmood4 case the above legal proposition has been dealt with in the following manner:
“4. Undisputedly, the petitioner's earlier suits in which the gift of Property No.334/1 was assailed had been dismissed as withdrawn unconditionally. Obviously, the petitioner was debarred under Order XXIII, Rule 1(3), C.P.C. from filing of another suit questioning the validity of the gift in question. The only object of the petitioner in moving the present application under section 12(2), C.P.C. is to re-agitate the issue which already stands closed on account of his withdrawal of the suits. The petitioner cannot be allowed to do indirectly what the law bars him from doing directly. We also agree with the contention of Mr. Gulzarin Kiani, Senior Advocate Supreme Court, that an application under section 12(2), C.P.C. being a substitute for a suit the limitations imposed by law on filing of suits were relevant for applications under section 12(2), C.P.C. There is another aspect of the case which the learned counsel for the respondents had pointed out. That even if the application under section 12(2), C.P.C. filed by the petitioner is allowed and the judgment and decree passed in favour of the respondent is set aside, the respondent is willing to withdraw the suit. In that case, the petitioner will be left without remedy to question the validity of the gift in view of the dismissal of his previous suits.”
Lastly, this Court in Ch. Ghulam Rasool5 case has further held as under:
“9. The close scrutiny of the evidence brought by the parties on the record in the light of their pleadings in the two suits would clearly show that the first suit was withdrawn unconditionally without the permission of the Court to file the fresh suit and notwithstanding the different nature of the second suit, the essential question required for determination would be whether the relief claimed in the first suit was different to that of the second suit or not and what would be the form of decree in the two suits. The second question is whether unconditional withdrawal of suit without the permission of Court would not amount to abandon the relief and in the second suit, there was a fresh cause of action. This is not deniable that relief claimed in the two suits was the same and cause of action was almost same, therefore, the plain reading of Order XXIII, rule 1, C.P.C. would show that subsequent suit on the same subject was barred under the law. In the light of pleading in the two suits and the relief claimed therein, the petitioner would be precluded to file the second suit as the cause of action in the subsequent suit was in continuation of cause of action in the first suit. 10. The plaintiff may withdraw the suit at any time in terms of Order XXIII, rules 1 & 2, C.P.C. with the permission of the Court but if the suit is withdrawn without the permission of the Court, he will be precluded from instituting a fresh suit in respect of such subject-matter as provided under sub-rule (3) of Order XXIII, C.P.C. It is clear from the pleadings of the parties in the two suits that notwithstanding the nature of subsequent suit the real controversy between the parties in both the suits related to the ownership of the suit property and there was no fresh cause of action in favour of petitioner in the second suit. The legal position emerged from the facts in the background would that petitioner having withdrawn the earlier suit without permission of the Court to file fresh suit had relinquished his claim and thereby precluded to file a fresh suit on the same subject-matter therefore, the second suit to the extent of seeking the relief of declaration that "respondent was a benami owner of the house" would certainly being barred by law would not be maintainable whereas the suit relating to the grant of relief of specific performance of the contract on the basis of the alleged oral agreement that "respondent having acknowledged the ownership of the house of the petitioner agreed to surrender the title of the house in his favour", was not supported by any other evidence oral or documentary except the sole statement of petitioner and in absence of any proof of such a compromise/agreement between the parties, the assertion that second suit was filed on the basis of fresh cause of action would have no substance. This is noticeable that the terms of compromise were not mentioned either in the application moved by the petitioner for withdrawal of the suit or in the order passed by the learned trial Judge, on the said application and so much so nothing was brought on record to show that the application for withdrawal of suit was moved with the consent and knowledge of the respondent.”
10. An additional question which falls for consideration is whether the subsequent suit, instituted after the withdrawal of the earlier suit, is barred by limitation. This proposition has been dealt with by this court in Mrs. Akram Yaseen6 case as under:
14. Another aspect of the case is that Order XXIII, Rule 1, C.P.C. provided for the filing of fresh suit with the permission of the Court. However, under Order XXIII, Rule 2, C.P.C., the plaintiff is bound by the law of limitation in the same manner as if the first suit had not been instituted and the plain interpretation of this rule is that period of limitation would have started from 8-6-1977 i.e. the date when Dr. Ghulam Yasin expired. This principle of law has also been laid down by this Court in the case of Mst. Anwar Bibi (quoted supra), in this judgment this Court has held as under:--
"Besides the first suit was withdrawn under Rule 1 of Order XXIII, C.P.C., therefore, section 14 of the Limitation Act was not applicable in view of the provisions of rule 2 of said Order which provides that in any fresh suit instituted on permission granted under rule 1 the plaintiff shall be bound by law of limitation in the same manner as if first suit has not been instituted."
Likewise, in Muhammad Saeed Bacha7 case this Court has held as under:
“ 11. … The ignorance of law for having disregarded the mandatory provisions of the law can hardly in the instant case, furnished legitimate and valid basis to exclude the period spent in prosecuting the suit; hence, in such circumstances on the institution of fresh suit by virtue of provisions of Order XXIII, Rule 2, C.P.C., the appellants/plaintiffs shall be bound by the law of limitation in a same manner, as if the first suit has not been instituted, therefore, in view of the averments as contained with regard to the accrual of cause of action referred to herein above, the fresh suit instituted by the appellants was badly barred by limitation.
12. The case of Anwar Bibi Supra for the foregoing reasons is of no assistance to the contentions put forth on behalf of the appellants by the learned counsel. In this precedent case, it was held by this Court that where the first suit was withdrawn under Order XXIII, Rule 1, C.P.C., the provisions of section 14 of the Limitation Act, 1908 would not be applicable.
13. In our considered opinion, the beneficial applicability of the provisions of section 14 of the Limitation Act would not simply be dependent on the withdrawal of the suit with the permission of the Court to institute a fresh suit on the same cause of action; rather, in view of the provisions of Order XXIII, Rule 2, C.P.C. on the application of law of limitation as if the previous suit was not instituted, the plaintiff has to show that the suit so instituted was within time but if the same was hit by limitation, the burden would always be on the plaintiff to show that he had been with due diligence prosecuting another civil proceedings founded\upon the same cause of action and acted in good faith in a Court which, for the defect of jurisdiction, or other cause of like nature is unable to entertain it read with the explanations to section 14 of the Limitation Act, to be entitled to the exclusion of the period consumed in such proceedings, which in the instant case is completely lacking, therefore, for the foregoing reasons, this appeal being without any substance is dismissed. There shall be no order as to the costs.
In the present case, the petitioners have neither pleaded nor established any factual or legal basis to attract the benefit of section 14 of the Limitation Act, 1908. There is no assertion, much less proof, that the earlier proceedings were prosecuted with due diligence and in good faith before a Court lacking jurisdiction or suffering from any defect of a like nature. Consequently, the challenge laid to the registered lease deed dated 01.07.1995, after the lapse of several years, is manifestly beyond the prescribed period of limitation and is, therefore, hopelessly time- barred.
11. In view of the foregoing discussion, we are of the considered opinion that the withdrawal of the earlier suit without permission to institute a fresh suit operates as a complete bar under Order XXIII Rule 1, CPC. The subsequent suit was not only barred by law but also by limitation. The failure of the petitioner(s) to challenge the withdrawal order further estops them from re-agitating the same cause of action. Consequently, this petition is devoid of merit and is dismissed. Leave is refused.
Leave refused
1 Ghulam Abbas and others Vs Mohammad Shafi through LRs and others (2016 SCMR 1403)
2 Azhar Hayat vs. Karachi Port Trust through Chairman and others (2016 SCMR 1916)
3 Muhammad Yar (Deceased) through L.Rs. and others vs Muhammad Amin (Deceased) through L.Rs. and others (2013 SCMR 464)
4 Malik Shahid Mehmood vs. Malik Afzal Mehmood and others (2011 SCMR 551)
5 Ch. Ghulam Rasool vs. Mrs. Nusrat Rasool And 4 Others (PLD 2008 SC 146)
6 Mrs. Akram Yaseen and others vs Asif Yaseen and others (2013 SCMR 1099)
7 Muhammad Saeed Bacha and another vs. Late Badshah Amir and others (2011 SCMR 345)