1990 PLP 1334 (CLC)

2. Mst. Meharunnisa then filed a suit on 2‑8‑1974 in the Court of IIIrd Senior Civil Judge, Karachi which was registered as Suit No.1717 of 1974 impleading the Karachi Cantonment Board and aforesaid Mst. Rukhsana as defendants in that suit. An application under Order VII, rule 11, Civil Procedure Code was filed on behalf of the Karachi Cantonment Board seeking rejection of the plaint on the grounds that as Mst. Meharunnisa had filed an appeal in respect of the regularization of plot in her favour and was pending before the President, Karachi Cantonment Board and as no notice required by law to be given to them before filing this suit was given by her the suit filed by her was premature. In order to over‑come such objections, an application under Order XXIII, rule 1, Civil Procedure Code was filed on behalf of Mst. Meharunnisa seeking permission to withdraw the suit. The IIIrd Senior Civil Judge, Karachi passed an order on 4th December, 1974 in the following terms: "Learned Advocates of parties are present. Defendant No.l has filed an application a/o VII rule 11, C.P.C. and CA. Plaintiffs have applied a/o 23 rule 1 C.P.C. for withdrawal of suit. Defendant No.2 has not filed W.S: Suit dismissed as withdrawn with no order as to costs."

3. The appeal filed by Mst. Meharunnisa referred to hereinabove was rejected by the President, Karachi Cantonment Board on 6‑3‑1975. She then filed another suit seeking a declaration that both the orders (original and appellate) in respect of the said plot be declared as inoperative and also sought an injunction restraining them from executing the lease in favour of Mst. Rukhsana. This suit was registered as Suit No. 706 of 1975 in the Court of IIIrd Senior Civil Judge, Karachi. Alongwith the plaint, an application under Order XXXIX rules 1 and 2 Civil Procedure Code was filed on behalf of the plaintiff for grant of interim injunction. During the course of hearing of such application the defendants in the suit not only opposed the grant of injunction but also questioned the maintainability of the second suit on the ground that as the plaintiff had withdrawn the previous suit without seeking permission to institute a fresh suit, the suit was barred under section 12 and Order XXIII rule 1 (3) Civil Procedure Code. The trial Judge by his order dated 31st March, 1976 held that the suit was barred by sub‑rule (3) of rule 1 of Order XXIII read with section 12 Civil Procedure Code and, therefore, he rejected the plaint under Order VII rule 11 Civil Procedure Code. Mst. Meharunnisa being aggrieved by such order filed an appeal, which was registered as Civil Appeal No. 200 of 1976 in the Court of District Judge, Karachi. Her appeal was ultimately taken up by Vth Additional District Judge, Karachi, who by his judgment dated 24‑4‑1984 dismissed it. Mst. Meharunnisa has now filed the present application under section 115 Civil Procedure Code impugning the orders mentioned hereinabove.

4. Mr. Mirza Mohammad Kazim, the Advocate for the applicant contended that second suit was filed after the decision was taken by the President, Karachi Cantonment Board in appeal which according to him, constituted a fresh cause of action and the second suit was competent. In support of his contention, he has relied on cases reported in P L D 1964 Kar. 587, and A I R 1959 Calcutta 715.

5. Mr. Turab Ahmed, Advocate appearing for respondent No.2 contended that Mst. Meharunnisa had in fact filed her first suit after she had already filed an appeal before the President, Karachi Cantonment Board. She had withdrawn the suit without seeking permission from the Court to institute a fresh suit. Under the circumstances, the second suit in respect of the same claim is barred by Order XXIII rule 1(3) Civil Procedure Code and the courts below have passed correct orders.

6. The only point that has been urged in this revision is whether the decision in appeal will constitute afresh and independent cause of action to a party to file a fresh suit where that party had withdrawn the suit in respect of the original order without seeking permission to institute a fresh suit. In order to appreciate the point in controversy in this revision, it is necessary to examine the provisions contained in Order XXIII rule 1 Civil Procedure Code, which is reproduced herein below; "Withdrawal of suit or abandonment of part of claim.‑‑(l) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject‑matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the: plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub‑rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject‑matter or such part of the claim. (4). ....................................................

7. The only point that needs to be considered in this revision application is whether in the circumstances of the present case when no permission was sought to file a fresh suit at a time when the previous suit was withdrawn a fresh suit can be filed in respect of a same subject‑matter. Mr. Mirza Mohammed Kazim, Advocate for the applicant argued that the second suit was competent as it was filed after the appellate authority had decided the case against the applicant which constituted a fresh cause of action. In order to ascertain if the filing of the second suit is barred by Order XXIII rule 1 (3) Civil Procedure Code, one has to carefully examine the substance of the two suits and not the form and language used in the plaint. The permission to file a suit is granted in respect of a "subject -matter" as distinct from cause of action. "Cause of action" includes all facts that may be relevant to a subject‑matter to entitle a plaintiff to get the relief claimed by him in the plaint. The facts that constituted the cause of action in respect of a subject‑matter may be wider than the subject‑matter itself. The legislature in rule 1 sub‑rule (3) of Order XXIII Civil Procedure Code has intentionally used the term "subject‑matter" instead of cause of action. On examination of the two plaints filed in this particular case it transpires that both the plaints related to the same subject‑matter i.e. refusal of the. Karachi Cantonment Board to recognise the applicant to be in. unauthorised possession of the plot in dispute so as to entitle her to the grant of lease in respect thereof. The case of Alberd Judah Judah v. Ramapata Gupta (AIR 1959 Calcutta 715) relied on by Mr. Mirza Muhammad Kazim, Advocate for the appellant also supports such a view. The other case cited by the learned Advocate for the applicant is not relevant to (he facts of the present case. Since Mst Meharunnisa had withdrawn the earlier suit B filed by her without seeking any permission to file a fresh suit, the second suit filed by her on the same subject‑matter is barred by sub‑rule (3) of rule 1 of Order XXIII Civil Procedure Code. Under the circumstances her plaint was rightly rejected.

8. For the foregoing reasons, this revision application is dismissed with no order as to costs. M.B.A./M‑1122/K Revision dismissed.