2011 PLP 1444 (YLR)

CH. MUHAMMAD TARIQ, J.

This writ petition has been directed against the order dated 27-5-2008 passed by the learned trial Court and order dated 8-3-2010 passed by the learned lower appellate court, Sargodha.

2. The brief facts of the case as mentioned in the writ petition are that the plaintiffs/petitioners filed a suit for declaration in respect of the suit' land fully described in para No.2 of the writ petition. During pendency of the suit, one of the plaintiffs Shahbaz died and the learned trial Court summoned his legal heirs i.e. petitioners Nos.21 to 27 vide order dated 11-4-2008 but before the appearance of petitioners, legal heirs of Shahbaz plaintiff, the learned counsel for the plaintiff's recorded his statement that he wants to withdraw the suit with permission to file a fresh one.

3. That the learned trial court on the same day dismissed the suit as withdrawn but did not accord permission to file fresh , suit.

4. Feeling dissatisfied, the petitioners/plaintiffs filed a civil revision before the learned District Judge, Sargodha, who also refused the permission and dismissed the revision petition vide his order dated 8-3-2010, hence this writ petition.

5. Learned counsel for the petitioners inter alia contends that the impugned' orders passed by both the lower courts are void, ultra vires and without lawful authority which have been passed in a hasty manner. The learned trial court was obliged to treat the statement for the withdrawal of the suit and permission for bringing a fresh suit on the same cause of action as one and indivisible, therefore, writ petition be allowed, impugned orders passed by both the courts below be set aside and petitioners be accorded permission to file a fresh suit.

6. Learned counsel for respondents Nos.1 and 2 has vehemently opposed this writ petition and has contended that the impugned orders do not suffer from any infirmity. The bare reading of Order XXIII, C.P.C., reveals that orders passed by the courts below are legal orders, there is concurrent finding of two courts below, therefore, writ petition be, dismissed.

7. Arguments heard. Record perused.

8. Perusal of statement of learned counsel for the petitioners/plaintiffs dated 27-5-2008 is important to decide the controversy of parties in which learned counsel for the petitioners/plaintiffs categorically stated that permission be accorded to him to withdraw the suit with permission to file a fresh one. Thereafter it was obligatory upon the learned trial Court to not only grant the plaintiff's permission to withdraw the suit but at the same time to allow them to file a fresh suit. Court cannot at the same time allow to withdraw the suit and refuse permission to institute fresh suit. It is a legal question of fact which was 1 ignored by both the courts below because this matter has already been determined by the Hon'ble Supreme Court of Pakistan in cases reported as 1970 SCMR 141 and PLD 1990 SC

596. Though there is concurrent finding of two courts below but the circumstances reveal that both the courts below have not applied their judicial mind while refusing the petitioners to grant permission to institute a fresh suit.

9. As a result of above discussion, this writ petition is allowed, impugned orders/judgments passed by both the courts below are set aside and permission to file a fresh suit is accorded to the petitioners. H.B.T./S-226/L Petition allowed.