1994 PLP 1750 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑Feroze Khan and others, petitioners herein, seek leave to appeal against the judgment dated 12‑4‑1993 passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, whereby Civil Revision No. 154‑D of 1985 filed by the petitioners, was partly accepted so far as the suit against respondent No. 2 was concerned but maintained the dismissal of their suit qua the other respondent. The facts of the case, briefly stated, are that Mehdi Khan, predecessor‑in‑interest of the petitioners, filed a Suit bearing No. 449 of 1972 in the Court of Civil Judge, Rawalpindi on 17‑7‑1972, against Zaman Ali, Mst. Gahran and Mst. Bhagan for declaration to the effect that the will registered on 8‑7‑1972 is forged and ineffective on the rights of the petitioners, which was withdrawn on 4‑10‑1974 on the ground that the grievance of the plaintiff had already been remedied. Subsequently, another Suit No. 424 was filed by the petitioners/heirs of Mehdi Khan on 5‑6‑1980 for declaration that the mutation attested on the basis of the will referred to above and the order of the Commissioner confirming the attestation of mutation is illegal, and additionally, respondent No. 2 having already been divorced by Ghulam Muhammad during his lifetime, was not entitled to inherit him. The defendants/respondents contested the suit and in view of their contention in the written statement a preliminary issue "Whether the suit is barred under Order 23, rule 1(3), C.P.C.?" was framed. The learned trial Court, vide its judgment and decree dated 23‑1‑1982 decided the issue in affirmative and, in consequence, dismissed the suit as barred under order 23 rule 1(3), C.P.C. The appeal filed against it also met the same fate. In the revision petition before the High Court the finding of the lower two Courts in this respect were maintained, however, the prayer for declaration that respondent No. 2 was already divorced being not in issue in the earlier suit the case was remanded for proceedings against her for determination of the said question. Hence the instant petition for leave to appeal. We have heard Mr. Muhammad Munir Peracha, Advocate, for the petitioners, and have perused the record of the case. The learned counsel for the petitioners vehemently argued that the cause of action in both the suits was not the same and also that the earlier suit had not been withdrawn unconditionally but it was specifically mentioned in the withdrawal application and the order of the Court that the grievance of the plaintiff had already been remedied. He explained that a mutation had been entered on the basis of impugned will which was rejected by the Revenue Officer and which order was maintained by the Collector as well, and therefore, the plaintiff withdrew from the suit as the will was not accepted. The necessity to file a subsequent suit arose when the owner died and the will became effective on the basis of which again the property allegedly bequeathed in favour of the defendants/respondents was mutated. Leave is granted to consider whether the cause of action in both the suits are different and therefore Order XXIII, rule 1(3), C.P.C. is in applicable. AA./F‑287/S Leave granted.