1990 PLP 788 (MLD)

Rana Muhammad Amin for Respondent No.l. Date of hearing: 10th December, 1989. On 5‑11‑1988 Tanveer Ahmad respondent No.l tiled suit for partition of houses No.S.E.32‑R‑9 and S.E. 32‑R‑8/80, situate in Lahore against Saeed Ahmad and 10 others, in the Court of Senior Civil Judge, Lahore. During the pendency of this suit, he filed second suit for the partition of the same property and for the rendition of accounts against Saeed Ahmad, Sajjad Ahmad, Mst. Sara Bibi, Mst. Robina Bibi petitioners and Mst. Anwar Bibi respondent No.2. It mad by noted that Saeed Ahmad, Sajjad Ahmad and Mst. Robina Bibi were also defendants in the first suit. After filing the second suit Tanveer Ahmad respondent No.l withdrew his first suit on 17‑4‑1985 without permission to file fresh suit. On 20‑9‑1989, present petitioners filed application for the dismissal of the second suit under Order XXIII, rule 1(3) and under rule 2, Order II, C.P.C. In the alternative he prayed for stay of proceedings in the second suit under section 10 read with section 151 C.P.C. The trial Court dismissed the application on 13‑11‑1989, hence this revision.

2. Learned counsel for the petitioners relied on Amir Din, Sahib Din. v. Shiv Dev Singh, Jhanda Singh (AIR 1947 Lah. 102) and Aziz Ahmad and others. v. Mst. Hajran Bibi and another (1987 S C M R 527), to contend that the bar created by sub rule (3) of rule 1, Order XXIII and rule 2, Order II C.P.C. applies to the second suit instituted by plaintiff/respondent, although before the. unconditional withdrawal of his first suit, because second suit offends against the well‑known maxim that no one shall be twice vexed with one and the same cause of action. He argued that if a plaintiff is allowed to file second suit during the pendency of the first suit and then withdrew the first suit unconditionally, this would entail undesirable consequences giving licence to a plaintiff to withdraw his first suit at any stage discovering that his suit is likely to fail and this may also lead to an endless litigation between the parties for the same relief based on the same cause of action as such trial in the second suit would tantamount to an abuse of the process of Court. On the other hand, the learned counsel for the respondents maintained that the provisions of Civil Procedure Code referred to by the learned counsel for the petitioners do not create any bar for the filing of second suit on the same cause of action and for the same relief, during the pendency of the first suit. He relied on Ghulam Nabi and others. v. Seth Muhammad Yaqoob and others' reported as P L D 1983 S C 344.

3. After carefully considering the arguments addressed by the learned counsel for the parties, I feel persuaded to follow the law laid down by the Supreme Court in `Ghulam Nabi and others. v. Seth Muhammad Yaqoob and others' reported as P L D 1983 S C

344. The relevant provisions of Civil Procedure Code may also be quoted advantageously:‑ Order XXIII, Rule 1(3), C.P.C. "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. O.II, rule 2, C.P.C. "Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished." On the plain reading of the provisions of law reproduced above it becomes crystal clear that the second suit on the same cause of action and for the same relief already instituted and pending at the time of the withdrawal of the earlier suit is not barred because fresh suit envisaged in sub‑rule(3) rule 1, Order XXIII, C.P.C. is one filed subsequent to the withdrawal of the earlier suit. No doubt, second suit may offend against the well‑known maxim that no one shall be twice vexed with one and the same cause of action and may give licence to a plaintiff to withdraw his first suit at any stage discovering that his suit is likely to fail but sitting as a Court of law, this Court has to administer law within the four corners, of the Code and according to the canons of law regardless of consequences. The case‑law relied upon by the learned counsel for the petitioners is distinguishable whereas the case‑law relied upon by the learned counsel for the respondents is on all fours. Pursuant to the above discussion, the revision is dismissed, leaving the parties to bear their own costs. M.BA./S‑622/L?????????????????????????????????????????????????????????????????????????????????? Revision dismissed.