2010 GBLR 84 (PLP)

MUHAMMAD NAWAZ ABBASI, C.J.

The dispute between the parties relates to the ancestral property. The respondent/plaintiff having filed a suit in the Civil Court sought a declaration to the effect that due to the transaction of sale conducted by the present petitioners in respect of suit land, their rights are not directly or indirectly affected. The suit was dismissed on the ground that earlier the decision of the Jirga in the matter was made rule of the court by the Political Agent exercising the power of civil Court. The appeal was preferred by the respondents/plaintiffs against the dismissal of suit before the District Judge Ghizer and pending disposal of appeal, moved an application for withdrawal of suit with permission of the court to file a fresh suit. This application was dismissed and respondents challenged this order before the Chief Court Northern Areas, and later also moved an application for amendment of the application for withdrawal of the suit. The Chief Court allowed both these applications in consequence to which the appeal of the respondents before the District Judge become infructous. The grievance of the petitioners in the present petition before this Court is that in the peculiar facts and circumstances of the case in the background, the withdrawal of the suit at appeal stage with permission to file fresh suit in the amended form causing serious prejudice to the petitioners was not justified the learned counsel for the petitioner however submitted that petitioner would have no objection to the unconditional withdrawal of the suit. The learned counsel for respondent on the other hand submitted that due to technical deficiencies in the suit and misdescription of property in the plaint the withdrawal of the suit was sought with the permission to file fresh suit and in the circumstances, the conditional withdrawal of suit was rightly allowed which would not prejudice the right of the petitioners in any manner in the property. After hearing the learned counsel for the parties and perused the record with their assistance, we have not been able to find any force in the, contention that withdrawal of the suit at appeal stage with permission to file a fresh suit with the proposed amendment would not prejudice the right of opposite party. The cause of action and nature of relief in the subsequent suit may directly or indirectly affect the right of opposite party already determined in the first suit. Under the provision of Order XXIII, C.P.C. the conditional withdrawal of the suit is possible only in exceptional cases in which no prejudice is caused to the opposite party in respect of rights in the subject matter of suit. We having considered the matter in detail are of the view that in the facts and circumstances of the present case, the withdrawal of the suit at appeal stage with permission to file the fresh suit on the same subject was not proper and legal. However, the permission of unconditional withdrawal I would be fair to safeguard the interest of the parties. In the light of foregoing discussion, we while modifying the order of Chief Court under challenge before us set aside the order regarding the amendment of the application for withdrawal of suit and direct for unconditional withdrawal of the suit. This petition is converted into an appeal and disposed of accordingly. M.H./9/Glt.????????????????????????????????????????????????????? ??????????????????????????????????? Appeal allowed.