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1981 Regular Second Appeal No. 29 of 1981, decided on 25th February,

(a) Civil Procedure Code (V alt 1908) -

O. XXIII, r. 1--Withdrawal of suit--Effect of-Suit filed previously withdrawn after filing fresh suit-Such fresh suit, held, not barred under O. XXUL r. 1.

Haji Ashfaq Ahmad Khan and others Mangi Lal and another v. Radha Mohan and another A I R 1930 Lab. 599 fol.

(b) Civil Procedure Code (V of I908)-

S. 100-Second appeal-Concurrent finding of fact-Lower Courts not shown to have misread evidence, or omitted to consider any material evidence on question involved-Held, such concurrent finding cannot be disturbed.

Zajar Pasha Cho Whary for Appellant.

ORDER

The suit giving rise to this regular second appeal was filed by one Mand, against Baboo and 9 others, for specific performance of an agreement for sale of certain agricultural land. It was alleged by the plaintiff that the first defendant, namely Baboo had agreed to sell the land to him but subsequently he had sold the same to the other defendants in the suit. The suit was con tested by the other defendant, namely, Abdullah and 7 others, who are vendees qua the sale in dispute, but not by the first defendant who had made that sale. It was contended by the vendees that they were bona fide pur chasers for value and thus the sale in their favour was protected by law. Their plea, however, did not find favour with Ch. Salamat Ali, Civil Judge, Lyallpur (now Faisalabad) and the suit was decreed by him. The judgment and decree of the learned trial Court were challenged by the vendees by means of an appeal which was dismissed by Malik Muhammad Afzal, Additional District Judge, Faisalabad. They have, therefore, come up in second appeal to this Court.

2. During the pendency of the first appeal, Mand, who had filed the suit, had died. Thereupon, Mst. Bashiran Bibi and 3 others, who are res pondents Nos. 1 to 4 in this second appeal, were impleaded as his legal representatives. The 5th respondents before me is Baboo who had sold the land in question to the appellants.

3. Learned counsel for the appellants contended that before filing the suit giving rise to the present appeal, Mand had instituted another suit but withdrawn the same without the permission of the Court and, therefore, the suit resulting in the instant appeal was not competent. This plea was also raised before the learned Additional District Judge but was rejected by him for the following reasons;

"The perusal of the record shows that, the respondents-plaintiffs had filed a suit for specific perform a on 12-4-1974. The present suit was' filed on 18-4-1974. The it filed on 12-4-1973 was withdrawn on 20-5-1974 and it was dismissed as such. In case Haji Ashfaq Ahmad Khan and others v. Custodian of Evacuee Property, Pakistan and others P L D 1966 Kar.597, it was held that where a suit is already pending before previously instituted suit, is withdrawn, the provisions of Order XXIII, rule 1, C. P. C. would not be applicable. The previous suit was withdrawn after filing of the present suit and Order XXIII, rule 1, C. P. C. will not bar the present suit and finding of lower Court on Issue No. 9-A is correct and is maintaine3."..

4. Learned counsel for the appellants did not approve of the aforesaid reasoning of the learned Additional District Judge. While commenting on the case reported as Haji Ashfaq Ahmad Khan and others relied on by the learned Additional District Judge, it was contended by the learned counsel that the case under report did not lay down a good law. It was also sub mitted by him that this Court did not share the view taken in the case of Haji Ashfaq Ahmad Khan and others.

5. 1 am unable to agree with learned counsel for the appellants. The point involved in the present case was also mooted before a Division Bench of this Court in Mangi Lal and another v. Radha Mohan and another A I R 1930 Lah. 599(2). Relevant observations made in the case of Mangi Lal and another read as under :-

"It is obvious that Order XXIII, rule 1, refers to permission to with draw a suit with liberty td institute a fresh suit after the first one has been withdrawn. It appears to me that the section cannot be read so as to bar a suit which has already been institued before the other suit had been abandoned or dismissed. The learned District Judge has said that no authority has been quoted on this point, but be felt certain that the Legislature could not have intended that such an obvious device should be permitted as its effect would be to defeat the provisions of the rule by dispensing with the necessity of obtaining permission of the Court.

I am not concerned with the intention of the Legislature as the section itself is clear and can only be applied to suits instituted after with drawal or abandonment of previous suits. This view was taken by a Single Judge of this Court in Ram Mal v. Upendra Date A I R 1928 Lah. 710, a case similar to the present."

It was the dictum in the case of Mangi Lal and another which was followed by the erstwhile High Court of West Pakistan while deciding the case of Haji Ashfaq Ahmad Khan and others. No authority to the contrary was cited by the learned counsel. The view taken in the said two precedent cases is based on sound reason and I am in full agreement with it. The finding of the learned Additional District Judge that the suit out of which this second appeal has arisen was not hit by the provisions of Order XXIII,[ rule 1 of the Code of Civil Procedure is therefore, unexceptionable.

6. The next plea raised by the learned counsel for the appellants was that the learned trial Court has erred in holding that the appellants were not bona fide purchasers of the land in dispute. His finding in this behalf was also upheld by the learned Additional District Judge while deciding the first appeal. It was a question of fact whether the appellants were bona fide purchasers of the disputed land on which the concurrent finding of the two Courts below is against them. It was not the case of learned counsel for the appellant that the learned lower Counts had misread the . evidence or had omitted to consider any material evidence on the said question. It is, there fore, not possible for me to disturb their concurrent finding.

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