2018 PLP 106 (CLCN)

MUZAMIL AKHTAR SHABIR, J.

Through this constitutional petition, the petitioner has called in question the order dated 21.06.2018, passed by learned Addl. District Judge, Khanewal, whereby the revision petition filed by respondent No.3 was allowed, with the result that the order dated 28.07.2017 passed by the trial court dismissing the suit filed by the petitioner was set aside.

2. Brief facts of the case are that respondent No.3 Mst. Saeed Fatima filed a suit for declaration with consequential relief of permanent injunction, wherein she has challenged the legality and validity of different mutations. The said suit was dismissed by the learned trial court on 28.07.2017 on the ground that petitioner has earlier filed a suit on the same cause of action which was dismissed as withdrawn on 31.05.2017 and court had not granted permission to respondent No.3 to institute a fresh suit. The respondent No.3 challenged the said order by filing revision petition, which was allowed on 21.06.2018 by the District Judge by setting-aside the order passed by the trial court. The order of the appellate court is under challenge through this constitutional petition.

3. Learned counsel for the petitioner has argued that in view of order under Order XXIII, Rule 1 of the C.P.C., once a suit has been withdrawn, subsequent suit on the same cause of action is barred, therefore, the learned appellate court has wrongly set-aside the judgment of the trial court whereby the suit was dismissed as not maintainable.

4. Heard. Record perused.

5. From the perusal of the record it is seen that the respondent No.3 filed a suit for declaration challenging certain mutations and also sought consequential relief. Earlier another suit seeking the same relief was filed by respondent No.3, which was withdrawn by recording statement on 31.05.2017 that permission to file fresh suit be allowed. The court on the same day after recording statement of the counsel for the respondent observed that suit is allowed to be withdrawn in view of the statement got recorded by the counsel for respondent No.3. Although in the said order it is not specifically mentioned that permission to file fresh suit had been allowed but as the suit has been allowed to be withdrawn in view of statement of counsel for respondent No.3 and permission to file subsequent suit has not been declined, it was to be assumed that permission to file fresh suit had been allowed to respondent No.3. For this purpose reliance is placed on 2013 SCMR 464 (Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others), wherein the Hon'ble Supreme Court of Pakistan has laid down the following principle of law:- "Upon the survey of the above cited (quoted) case-law, it is hereby enunciated, that where the plaintiff has applied for the withdrawal of his suit or has sought the abandonment of his claim or a part thereof, with the permission of the Court to bring a fresh suit, it is within the authority of the Court obviously with the parameters of sub-rule 2(a)(b) to either decline such request or allow the permission. In the eventuality of refusal the suit should not be dismissed simpliciter, rather the request for permission alone be turned down and the suit should continue, thus obviously the plaintiff shall have a right, to choose his further course of action and to decide whether he should withdraw the suit or not. In the other eventuality, there does not seem any problem except that the Court has to record its reasons justifying the permission, which in any case shall be so recorded in either of the eventuality as afore-stated. However, the problem is faced where the request is not declined in express and clear words, yet the suit is 'dismissed as withdrawn' without recording the reason; though such an order' shall be bad for failure to assign the reasons and if not assailed on that ground by the other side it shall attain finality, but in the situation it should be implied, considered and deemed that the Court has found it to be a fit case for the permission and has granted the plaintiff permission to file a fresh suit, because this is safer course, which should be followed in the interest and promotion of justice, otherwise serious prejudice shall be caused to the plaintiff who shall have to face the bar of sub-rule (3) and shall be left in a flummox." In the present case, the court while allowing the respondent No.3 to withdraw the suit has not refused permission to respondent No.3 in express words to file a fresh suit on the same cause of action, therefore, while relying upon the principle laid down in the case mentioned supra, it is observed that the respondent No.3 had been impliedly permitted to file the subsequent suit as the court had mentioned that suit had been allowed to be withdrawn in view of the statement of the counsel for the plaintiff (respondent No.3), because the counsel had requested for permission to file a fresh suit. Thus, I am of the view that the respondent No.3 was not precluded from filing subsequent suit on the basis of same cause of action only because of withdrawal of the earlier suit. Moreover, in the earlier suit, the plaintiff had challenged only two mutations and the defendants in that suit were four in number. However, in the subsequent suit, the defendants are 20 in number and the challenged mutations are about 15 in number, which shows that the cause of action in the subsequent suit was not exactly the same as the previous suit and thus the previous suit could not be a bar to file subsequent suit on that account as well. Consequently, the learned revisional court rightly allowed the revision petition filed by respondent No.3 and set aside the order dated 28.07.2017 passed by the learned trial court, whereby the suit filed by respondent No.3 was dismissed as not maintainable.

6. No illegality, infirmity or jurisdictional defect has been pointed out in the order dated 21.06.2018 passed by the revisional court, whereby the same could declared to be without lawful authority and be set aside.

7. For what has been discussed above, this petition being devoid of any merits stands dismissed. SA/R-8/L Petition dismissed.