P L D 2004 Karachi 63 (PLP)

"Learned counsel for the plaintiffs Nos.1 and 3 filed application under Order 23, rule 1, C.P.C., praying therein to allow withdrawal of the suit on technical grounds with permission to file a fresh. The plaintiff No.2 is absent right from beginning and is not contesting matter, although she is real sister of plaintiff No.

1. I have gone through the averments of the plaint as well as pleadings and have also come to the conclusion that there are formal defects in the plaint. Whereas it is right of the plaintiff to withdraw the suit at any moment at any stage against one or all the defendants, hence in the above circumstances suit being withdrawn stands dismissed with permission to file a fresh." The order was passed in presence of legal heirs of defendant No. 1, viz. petitioners Nos.2 to

4. The petitioners filed civil revision under section 115, C.P.C. against the said order challenging the order passed by the Civil Judge granting permission to withdraw the suit with right to file the fresh only to the extent of granting permission to file fresh suit. The learned IVth Additional District Judge, Karachi (West) dismissed the revision application. The petitioners through this petition assailed these two orders. Heard Mr.M. Ismail Kassim, learned counsel for the petitioners, and Mr.Fiazul Hassan Shah, learned counsel for respondents Nos. 1 and

2. The learned counsel for the petitioners mainly argued that the learned trial Court as well as revisional Court committed error of law in granting permission to file the fresh suit while accepting the application for withdrawal of the suit. He further argued that permission to file the fresh suit can be granted only in case where Court is satisfied that a suit must be withdrawn by the reason of some formal defect or there are some sufficient grounds in allowing the plaintiff to institute a fresh suit for the same cause of action. On the other hand, the learned counsel for the respondents Nos. 1 tend 2 argued that as the petitioners have no locus standi to file the present petition, they are not joined as party in the proceedings till the date of withdrawal of the suit. The learned counsel next argued that the petitioner No. 1 filed an application under Order 1, rule 10, C.P.C., to be joined as one of the defendants and the said application was pending for adjudication on the date when respondents withdrew the suit and as such the petitioners have no right to question the order of granting permission to file the fresh suit. Likewise he further argued that the petitioners Nos. 2 to 4 opposed the request of the respondents to join them as the legal heirs of defendant No.1 on the ground that the dispute pertains to Sajjadanasheen and after the death of their predecessor-in-interest the suit stood abated. We have gone through the 'record and also considered the respective arguments of the learned counsel for the parties. It appears that the petitioner No. 1 has not been joined as a party in the proceedings and as such in our opinion petitioner No. 1 cannot question in the circumstances of this case the impugned order whereby the learned Court granted permission to withdraw the suit with a right to file the fresh. As regards petitioners.Nos.2 to 4, they themselves took the stand that after the death of defendant No. 1, the suit stood abated, it does not lie in their mouth now to question the order of withdrawal of the suit to file the fresh. The advocate for the petitioner failed to point out any illegality or irregularity in-the impugned orders to call for interference in the orders passed by the learned Additional District Judge and trial Court in exercise of Constitutional jurisdiction under Article 1 19 of the Constitution. For the foregoing reasons the petition is dismissed in limine with no order as to costs. Consequent upon the dismissal of the petition, the listed I applications have become infructuous which are also dismissed as having become infructuous H.B.T./M-550/K Petition dismissed.