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--- O. XXIII, r. 1 (3)-Withdrawal of suit=Plaintiffs applying for withdrawal of suit with Permission to institute fresh suit-Three days later, counsel in his statement, not asking for permission to institute fresh suit-Court passing order accordingly-Held, no fault with such order dismissing suit without permission to institute fresh suit.

Mirza Rashid Muhammad for Petitioner.

Date of hearing: 22nd May, 1982.

The facts leading up to this revision are that Mirza Bashir Muhammad and two others, petitioners filed a declaratory suit against Muhammad Ali and 4 others respondents seeking , declaration to the effect that they being the legal heirs of Mst. Amir Bibi the limited owner were entitled to get the property in dispute as against the respondents who were strangers and got the mutation No. 1686, dated 15th October, 1977 sanctioned collusively in their favour. The suit was contested and the following issues were framed;-

(1) Whether this suit is not maintainable under section 11 of C. P. C. 7 O. P. D.

(2) Whether this suit is not maintainable under Order XXIII, rule 3 of C. P. C. 7 O. P. D.

(3) Relief.

The trial Court after recording evidence found issues 1 and 2 against the petitioners and dismissed the suit on 1st December, 1981. Feeling aggrieved the petitioners filed an appeal, which was dismissed by the learned Additional District Judge, Sahiwal on 14th February, 1982, Hence this revision.

2. Before me, the learned counsel for the petitioners has challenged the finding of the learned Courts below on both the issues and has con tended that the decree dated 2nd January, 1963 cannot operate as res judicara in the circumstances of the case. He further contends that the trial Court was not competent to allow withdrawal of the suit without permission to institute a fresh suit.

3. After hearing the learned counsel I find that on 7th September, 1980, an application was filed by the petitioners/plaintiffs for the with drawal of the suit with permission to institute a fresh suit but on 10th September, 1980, i.e. after 3 days, the learned counsel while making the statement did not ask for permission to institute a fresh suit. He simply stated that he wants to withdraw the suit and the order was passed in accordance with his statement. The order reads as follows :-

I do not find any fault with the order dated 10th September, 1980 where by the suit was dismissed without permission to institute fresh suit. Sub-rule

(3) of rule 1, Order XXIII lays down as under :-

"(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 the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."

It is, thus, very much clear that Mirza Bashir Muhammad and others were precluded from instituting the present suit and as such no exception can be taken to the impugned judgments. I further find that both the learned Courts below have properly dealt with the issue No. I and have given sound reasons in support of their findings.

For what has been stated above, it is not a fit case for interference with the impugned judgments and decrees. The revision is dismissed in limine..

Petition dismissed.

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