1999 PLP 3342 (MLD)

Writ Petition No.29762 of 1997, decided on 2nd January, 1998.

Art. 199

Civil Procedure Code (V of 1908), O. XXIII, R. 1 (2)-- Requirements of O. XXIII, R.I (2), C.P.C.

Constitutional petition

Trial Court allowed petitioner to withdraw his suit with a permission to file afresh one

Additional District Judge set aside such order and remanded case to Trial Court on the ground that in the said application it was simply stated that there were some technical defects in the suit but no such defect was disclosed by Trial Court while granting permission to withdrawal of suit

Trial Court did not assign any reason as to why permission was necessary

Validity

Held, Court before granting permission to institute a fresh suit, after withdrawing of the earlier one, must satisfy itself of sufficient ground of some formal defect which was necessary for allowing to institute a fresh suit. Zahid Hussain Khan for Petitioners The petitioners filed an application under Order XXIII, Rule 1, C.F.C, for seeking permission to withdraw the suit with prayer to file fresh one. This application was allowed vide order dated 24-3-1996. Against this order a revision petition was filed by the respondents, which was accepted by the learned Additional District Judge, Kasur vide judgment and decree dated 28-10-1997. This Constitutional petition has been instituted against the judgment and decree passed by the Additional District Judge Kasur dated 28-10-1997.

2. I have gone through the judgment passed by the learned Additional District Judge. The impugned order was set aside and the case was remanded to the learned Trial Court for deciding the application of the petitioners afresh in accordance with law and the parties were directed to appear before the learned Trial Court on 6-11-1997. The learned Additional District Judge has provide an opportunity to the respondents to establish their case before the learned Trial Court and the case has not yet finally been decided. The observation of the learned Additional District Judge is that in the application submitted by the petitioners it was simply stated that there were some technical defects in their suit. However, no such defect was disclosed and while granting permission to the withdrawal of the suit the learned Trial Court also did not assign any reason as to why the permission was necessarily required to be granted for filing fresh suit. Under Order XXIII, Rule 1(2), C.P.C. the court before granting permission to the plaintiffs to institute a fresh suit after withdrawing the earlier one must satisfy itself that there was sufficient ground of some formal defect which was necessary for allowing the plaintiff to institute a fresh suit, but the learned Trial Court did not advert to all these requirements and did not pass a speaking order. I see no reason to interfere in the judgment and decree dated 28-10-1997 passed by the learned Additional District Judge, Kasur. However the learned Trial Court is directed to pass a speaking order after providing full opportunity of hearing to the parties. This writ petition has no merit and the same is dismissed in limine. Q.M.H/M .A.K/N 112/L Petition dismissed.