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Civil Petition No. K‑213 of 1980, decided on 10th May, 1981.
(On appeal from the judgment and order of the High Court of Sind dated 14‑6‑1980 in L. P. A. No. 166/69).
-O. XXIII, r. 1‑Returning of plaint for presentation before proper forum‑‑‑Withdrawal of suit‑Plaint returned to plaintiffs respondent6 for presentation before, proper Court for reason of value involved being to excess of pecuniary jurisdiction of Court‑Respondents instead of presenting same plaint before proper forum instituting a fresh suit in High Court on same cause of action after making some additions and alterations in plaint‑Held: No withdrawal involved and plaintiffs not allowed to withdraw suit under O. XXIII, r. 1‑No formal defect in plaint nor any request made by plaintiffs‑Plaint returned due to Court having no jurisdiction‑Plaintiffs, hence, under no legal obligation to file same plaint before other forum and could submit a fresh plaint subject to availability of period of limitation‑High Court could not return plaint or dismiss same on such ground alone.[Plaint]:
M. G. Dastgir, Advocate, Supreme Court instructed by Faizanul Haq Advocate‑on‑Record for Petitioners.
A. Aziz Khan Advocate on‑Record for Respondents.
Date of hearing : 10th May, 1981.
‑‑This petition has been submitted by Abdul Shakoor etc. for special leave to appeal under Article 185(3) of the Constitu tion of Islamic Republic of Pakistan against the judgment dated 14th. June, 1980 of the Sind High Court at Karachi in L. P. A. No. 166 of 1969.
The brief facts of the case are that the respondents had instituted a suit in the Court of 4th Civil Judge, Karachi, for setting aside the compromise decree in Suit No. 671 of 1961 on the ground that the same 'had allegedly been obtained by fraudulent means. On 27th of October, 1965, the plaint was returned to the respondents for presentation before the proper Court as the value involved therein exceeded the pecuniary jurisdiction of the said Court. The respondents instead of presenting the same plaint before the proper forum, instituted afresh suit on 15th July , 1966 in the High Court on the same cause of action after making some additions and alterations in the plaint.
A Single Judge of the High Court gave a finding that the fresh suit could not proceed and found that the plaint as filed was not maintainable. A Letters Patent Appeal was preferred before a Division Bench of the High Court and the Division Bench in L. P. A. No. 166/69 decided on 14th June, 1980, observed that the judgment dated 28‑10‑1969 of the learned Single Judge was not sustainable. It was set aside and the case was remitted back for further proceedings according to law from the stage it was dismissed by the learned Single Judge. That order of the Division Bench has been assailed before us.
The contention of the learned counsel for the petitioners is that under Order XXIII, rule 1, the plaint was returned and it should have been submitted on the same cause of action, but the respondents submitted a fresh suit on different causes of action. It will be appreciated that no withdrawal was involved and the plaintiffs were not allowed to withdraw their suit under Order XXIII, rule 1. There was no formal defect in the plaint nor an request has been made by the plaintiffs before the Court. Here the plain was returned by the Court concerned because it had no jurisdiction to decide it. The plaintiffs were, therefore, under no legal obligation to file the same plaint before the other forum. They could submit a fresh plaint and as indicated above they were under no obligation to file a suit at all. Of course, in the later case they could not overlook the period of limitation fixed for such a suit. Before the Single Judge of the High Court when the respondents submitted their plaint including therein some other grounds and that suit was not time‑barred, they could do so: Therefore, the Single Judge in the High Court could not return the plaint or dismiss it on that ground alone. In that view of the matter, the decision of the Division Bench was correct.
The learned counsel for the petitioners has submitted that under Order VII, rule 11 of the C. P. C. on return of a plaint the Judge is under obligation to endorse on the plaint the date of presentation, name of the parties presenting it, and the brief statement of the reasons for its return. It happens when a plaint is returned because the Court has to endorse the particular date when the plaint was submitted, and also the reason for the return of the plaint. It is for the second Court before whom the plaint is then presented to consider the request, if any, of the plaintiffs for the condonation of delay, if any, but that matter is not before us.
We find no fault in the impugned order of the Division Bench. This petition for special leave to appeal is, therefore, dismissed in limine.
Petition dismissed.
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