1987 PLP 1020 (CLC)

Moin‑ud‑Din Chaudhry for Petitioner. . On 26‑2‑1986, Muhammad Mustaqem and others filed a suit for declaration and permanent injunction as consequential relief against the Province of Punjab and two others before Senior Civil Judge, Multan which was entrusted to Civil Judge First Class, Multan. Alongwith the suit they filed application for grant of temporary injunction under Order XXXIX, Rules 1 and 2, section 151, C.P.C. The application was contested. The trial Court vide its order dated 29‑4‑1986 not only dismissed the application but also rejected the plaint under Order VII, Rule 11, C.P.C. Feeling aggrieved thereby the petitioner filed appeal which was entrusted to Additional District Judge who dismissed the ,same on 14‑6‑1986, hence this revision.

2. The learned counsel for the petitioners mainly contended that since the present suit was filed in pursuance to the order of the High Court dated 19‑2‑1986 passed in Writ Petition No. 5/R of 1983, therefore, the provision of Order XXIII, Rule 1, C.P.C. and Order VII, Rule

11. C . P. C . were not applicable and as such the plaint has wrongly been rejected.

3. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. I find that the petitioners on their own showing in paras. Nos. 11 and 12 of the plaint, had earlier filed a civil suit in respect of the same subject‑matter; that during the pendency of the said suit, they filed writ petition in respect of the same subject‑matter which was, however, withdrawn; that after the withdrawal of the petition, the petitioner also withdrew the earlier civil suit, obviously, without permission to file fresh one. They also filed a second writ petition in respect of the same subject‑matter which, too, was withdrawn by them on 19‑2‑1986. The order passed by this Court is as under:‑

" Learned counsel for the petitioner submits that as the petitioner claims to be owner of the property in dispute by virtue of adverse possession which involves a disputed question of fact, he would like to file a civil suit. Learned counsel, therefore, wishes to withdraw this petition which is disposed of accordingly." Thereafter, the petitioner filed the present suit on 26‑2‑1986. In the circumstances that not only the earlier civil suit but also the two writ petitions filed by the present petitioners were withdrawn without permission to file fresh suit. I am of the view that the petitioners, now, stand precluded from instituting the present suit under Order XXIII, rule 1 (2)(b) and as such, no exception can be taken to the rejection of plaint under Order VII, Rule 11 of the Civil Procedure Code. For what has been said above, there being no merit, the petition is dismissed in limine. H . B . T . / M‑27/ L Revision petition dismissed.