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Civil Petition for Special Leave to Appeal No. 52‑P of 1968, decided on 13th November 1969.

(On appeal from the order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 10th October 1968, in Letters Patent Appeal No. 36 of 1968).

O. XXIII, rr. 2 & 3 Withdrawal of suit granting permission to withdraw suit‑Court cannot at same time refuse permission to institute fresh suit‑Right to bring fresh suit follows automatically on grant of permission to withdraw suit.

Haji Abdur Rashid Sowdagar v

S. M. Lalita Roy P L D 1959 S C (Pak.) 281 ref.

Muhammad Yunis Shah

Advocate Supreme Court instructed by M. Qasim Imam, Attorney for Petitioners.

Nemo for Respondents.

Date of hearing : 13th November 1969.

‑The respondent, Shahzad Gul, had instituted a suit for possession of certain lands situated in village Qutab Garah in Mardan District, alleging that he was the exclusive owner thereof; but the petitioners had wrongfully encroached thereon abut a year before and constructed an Abadi over the land. The petitioners resisted the suit on several grounds, including limitation, adverse possession and non‑main tainability of the suit on the ground of withdrawal of a previous suit on the same cause of action. It appears that the respondent had instituted a suit previously on the same cause of action, but had subsequently applied to withdraw the same with permission to bring a fresh suit. On the 6th of October 1960, the Senior Civil Judge, Mardan, allowed the withdrawal of the suit but refused to grant permission for bringing a fresh suit on the same cause of action, on the ground that sufficient cause had not been made out for that purpose.

In this view of the matter the trial Court hearing the second suit held that it was barred under the provisions of Order XXIII, rule 1, sub‑rule (3) of the Code of Civil Procedure, although it was inclined to take the view that the respondent was indeed the owner of the land in suit and that the present petitioners had encroached thereupon.

On appeal, however, the Additional District Judge of Mardan came to a contrary conclusion. He was of the view that permis sion could not be granted to withdraw the suit while refusing permission to bring a fresh suit, as the two were indivisible. The order of the trial Court was, accordingly, reversed and the suit for possession was decreed. In second appeal a learned Single Judge of the High Court, after reviewing a number of decisions, came to the conclusion that under sub‑rule (2) (b) of rule 1 of Order XXIII of the Code of Civil Procedure the Court has to treat the application for the withdrawal of the suit and permission for bringing afresh suit on the same cause of action as one and indivisible. It must either reject or accept both the prayers in such an application. It is not open to it to allow the withdrawal of the suit and yet refuse permission to institute a fresh suit in respect of the same subject‑matter.

The learned Single Judge was also of the view that in the circumstances the learned Civil Judge had acted without jurisdic tion in refusing permission to bring a fresh suit and, therefore, his order of the 6th of October 1960, was a nullity in the eye of the law, as it was made without jurisdiction.

This judgment has been upheld on Letters Patent Appeal by a short order dismissing the appeal in limine.

The defendants in the suit now seek special leave to appeal and it is contended on their behalf that a question of law of some general importance has been raised which should be examined by this Court. Learned counsel also urges that there is some conflict of decisions on this point in the High Courts, but it appears to us that the view taken by the High Court finds support from a decision of this Court in the case of Haji Abdur Rashid Sowdagar v. S. M. Lolita Roy (P L D 1959 S C (Pak.) 281) where Munir, C. J. pointed out the differences between sub‑rules (1) and (2) of rule 1 of Order XXIII of the Code of Civil Procedure, and opined that under sub‑rule (2) "the withdrawal is complete the moment the order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted". To such an order of withdrawal the provisions of sub‑rule (3), it was further pointed out, do not apply, l6 they being restricted to a withdrawal under sub‑rule (1) of rule 1 of order XXIII.

In this view of the matter it cannot be said that any question of law of any general importance is involved in this case. The point of law has already been answered by this Court in the decision above referred to and since the impugned judgment of the High Court adopts the same view, although no reference is made to the said decision of this Court, we see no reason for granting leave in this petition which is, accordingly, dismissed.

Leave refused.

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