⚖️ 2026 SCMR 757
— Withdrawal of Suit & Bar on Fresh Litigation
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🔴 سپریم کورٹ کا فیصلہ (Key Findings)
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Must read judgment.
2026 S CMR 757
[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 of 2025, decided on 5th January, 2026.
(Against judgment dated 07.10.2025 passed in C.R. No. 80-P of 2017 by Peshawar High Court, Peshawar).
(a) Civil Procedure Code (V of 1908)-
-O.XXIII, R.1--Limitation Act (IX of 1908), S.14---Civil suit challenging registered lease deed Suit withdrawn "as withdrawn" simpliciter No liberty/permission sought/granted to instituted fresh suit-Effect-Subsequent suit on same cause of action Permissibility-Limitation-Exclusion of time spent before wrong forum-Scope-Briefly, the petitioners' (through their late father) filed a civil suit before seeking declaration, perpetual injunction and, in the alternative, possession regarding the shop in question, claiming leasehold rights and challenging a registered lease deed executed in favour of respondent No.1: the suit was decreed and the respondent's appeal was dismissed, but in civil revision the High Court set aside the concurrent judgments and dismissed the suit, leading to the filing filing of present petition for leave to appeal before the Supreme Court, urt whereby, whereby, the Supreme Supreme Court Court considered maintainability of the suit in view of the earlier civil suit (on the same cause and lease deed) which was withdrawn without permission to file a fresh suit---Held: The application seeking withdrawal of the earlier suit was completely silent as to any condition, reservation,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 ---A withdrawal founded upon a private arrangement which neither received judicial recognition nor was reflected in the order of the Court could not, in law, be treated as anything other than a withdrawal simpliciter---Such an unconditional withdrawal squarely attracted the bar contained in Order XXIII, Rule 1(3), C.P.C., thereby precluding the institution of a subsequent suit in respect of the same subject matter With respect to the issue of limitation the petitioners had neither pleaded nor established any factual or legal basis to attract the benefit of Section 14 of the Limitation Act, 1908---There was 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, after the lapse of several years, was manifestly beyond the prescribed period of limitation and was, therefore, hopelessly time-barred Withdrawal of the earlier suit without permission to institute a fresh suit operated as a complete bar under Order XXIII, Rule 1, C.P.C.---The subsequent suit was not only barred by law but also by limitation---The failure of the petitioners to challenge the withdrawal order further estopped them from re-agitating the same cause of action---Leave was refused and present petition being devoid of merit was dismissed.
Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403; Azhar Hayat v. Karachi Port Trust through Chairman and others 2016 SCMR 1916; Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L..Rs. and others 2013 SCMR 464; Malik Shahid Mehmood v. Malik Afzal Mehmood and others 2011 SCMR 551; Ch. Ghulam Rasool Nusrat Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146; Mrs. Akram Yaseen and others v. Asif Yaseen and others 2013 SCMR 1099 and Muhammad Saeed Bacha an Bacha and another v. Late Badshah Amir and others 2011 SCMR 345 rel.
(b) Civil Procedure Code (V of 1908)---
----O.XXIII, R.1---Withdrawal of suit---Filing of fresh suit on same cause of action---Permission, non-seeking of-Subsequent suit, maintainability of Scope-Where the withdrawal order is passed in the presence of the parties and remained unchallenged despite the availability of adequate statutory remedies the party having acquiesced in the said order and allowing it to attain finality, cannot 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.
Hassan Ullah Khan Afridi, Advocate Supreme Court for Petitioners.
Nemo for Respondents.