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Civil Petition for Special Leave to Appeal No. 639 of 1982, decided on 9th February, 1983.
(Against the judgment of the Lahore High Court, Lahore in Civil Revision no. 658 of 1982, dated 10‑5‑1982).
‑‑‑ Art. 185 (3)‑Suit for specific performance of agreement to sell immovable property permitted to be withdrawn for deficiency in court -fee‑Period of prescribed limitation still available to petitioner at time of permission to withdraw suit and he could reassert his claim on pay ment of proper court‑fee‑Held, petitioner in circumstances of case did not suffer any tangible or irreparable injury on account of permis sion to withdraw suit.
Sh. Hamid Mukhtar, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.
Ch Muhammad Hasan, Advocate Supreme Court and Rana M. A. Qadri, Advocate‑on‑Record for Respondent.
Date of hearing : 9th February, 1983.
‑‑The petitioner, defendant in a civil suit, seeks leave to appal against the judgment .of the Lahore High Court dated 10th May, 1982 whereby a civil revision petition filed by him challenging the order of the Civil Judge whereby permission was granted to the plaintiff‑respon dent to withdraw the suit with permission to file a fresh one, was dismissed.
The respondent filed a civil suit on 2‑12‑1980 claiming specific perfor mance of an agreement to sell immovable property dated 22nd September, 1980. It was according to the petitioner deficient in court‑fee and the petitioner had not made up the court‑fee within the time allowed. With out disclosing the formal defect he asked for the withdrawal of the suit which was granted by the trial Court on 27‑1‑1981. The High Court rejected the civil revision petition on the ground that the permission to withdraw the suit was on payment of costs and made in presence of the party and his counsel.
Learned counsel for the petitioner has; in the first place, challenged the very presence of the party and his counsel at the time when the withdrawal was allowed. It has also been contended that a valuable right had accrued to the petitioner as the plaintiff‑respondent I‑ad failed to make up the deficiency in the Court fee and he could not be deprived of the right by permitting withdrawal with permission to institute a fresh suit on the same cause of action.
The petitioner's contention that a valuable right had accrued to petitioner is misconceived, for the period of limitation permissible for the specific performance of an agreement was still available when the Permission to withdraw. the suit was granted. The petitioner could on proper court being paid reassert the claim. In the circumstances, we find that the petitioner has not suffered any tangible or irreparable injury on account of permission to withdraw the suit. The petition has no merit and leave to appeal is refused.
Petition dismissed,
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