1995 PLP 465 (CLC)

These two applications which are identical in nature have been moved by the defenddnts. The contention of the defendants is that earlier the present plaintiffs Achar and Aslam alongwith 49 other persons had filed the suit being Suit No. 456 of 1991 before the IV Civil Judge, Karachi (West) wherein they had prayed for identical reliefs which is as under: (i) Declaration that plaintiffs have permanent hereditary rights in 130 Salt‑Pans in Maripur, Karachi since their forefathers. (ii) Permanent injunction thereby restraining the defendants, their men, agents, assigns, attorneys, executors, servants, any person or persons acting on their behalf or under their authority from illegally and unlawfully manufacturing salt at 1.30 Pans of lumaris situated at Maripur, Karachi and also restrain them from preventing the plaintiffs from working at and visiting their own 130 Salt‑Pans situated at Maripur, Karachi. (iii) The defendants may be directed to render and settle accounts with the plaintiffs in respect of their rights in the manufactured suit. (iv) Costs. (v) Any other/further/additional relief or reliefs that this Hon'ble Court may deem fit and proper under the circumstances of the case may also be granted. In this earlier suit the cause of action is shown to have accrued to the plaintiffs initially on 21‑2‑1991 when the legal notice was sent by the plaintiffs to the defendants calling upon them to stop illegal, manufacture of salt and to settle the matter with the lumaris and finally on 21‑7‑1991 when the defendants are alleged‑to have forcibly stopped the plaintiffs from working and visiting the Salt‑Pans. In the present suit also the case of the plaintiffs is identical and the cause of action is shown to have accrued to the plaintiffs on 7‑3‑1992 when the Defendants are alleged to have forcibly entered the said Salt‑Pans. I have heard Mr. Khursheed Anwar Shaikh, learned counsel appearing for defendants, who has made these applications. Mr. SA. Samad Khan, learned counsel for plaintiffs is called absent. The contention of the learned counsel for the defendants is that the previous suit was withdrawn unconditionally and as such was dismissed on 4‑3‑1992 as withdrawn. In these circumstances, the contention of the learned counsel is that the present suit is barred under the provisions of Order XXIII, rule 1(3), C.P.C. which reads as under: "Withdrawal of suit or abandonment of art of clam ‑‑(i) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) .................................................... (a) .................................................... (b) .................................................... (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub‑rule (2), he shall be liable for such costs as a Court may award and shall be precluded from instituting any fresh suit in respect of such subject‑matter or such part of the claim." (4) .................................................... A perusal of the above provisions is very clear on the question involved in the present matter. The copy of the plaint and the order of dismissal alungwith application seeking the withdrawal of the suit have been placed on record and it can be safely assumed that the present suit is also based on same cause of action. Rather the cause of action in the present suit is a continuation of the cause of action in earlier suit. In these circumstances, I am of the view that the present suit is hit by the abovesaid provisions of Order XXIII, rule 1(3), C.P.C. and is barred by law. Accordingly, I allow these two applications and dismiss the suit as not maintainable. However, there will be no order as to costs. A.A./A‑1510/K Suit dismissed