Find a Lawyer

‑‑‑S. 115 & 0. XXIII, R. 1‑‑Withdrawal of suit, prayer for‑‑Suit for declaration and permanent injunction filed by petitioner‑‑Trial Court dismissing the suit under 0. VII, R. 11, C.P.C.‑‑Judgment challenged in revision‑‑During the pendency of proceedings petitioner was dismissed from service by respondent‑‑During hearing of revisions, petitioner requested that after his dismissal circumstances of case had been materially changed‑‑In such circumstances petitioner was permitted to withdraw his suit with permission to institute fresh suit.

Mirza A. Rashid for Applicant. S.A. Sarwana for Respondents. Date of hearing: 19th March, 1986.

This revision Application is directed against the two concurrent judgments of the Courts below whereby the suit instituted by the applicant for declaration and permanent injunction was dismissed under

Order VII, Rule 11, C.P.C., by the trial Court and dismissal has been upheld by the first appellate Court.

2. It is contended by the learned counsel for the applicant that the suit could not be dismissed under Order VII, Rule 11, C.P.C. after the trial Court had reached the conclusion that the civil Court had no jurisdiction in the matter. It is alternatively contended by the learned counsel for the applicant that in any case the decision on merits could not have been pronounced by the Court without framing issues and recording evidence as would appear from the judgment of Courts below that the entire case was considered on merits and the learned first appellate Court upheld the judgment of the trial Court on the ground that the suit was not maintainable for the reason that relationship between the petitioner and the respondent was that of master and servant. It is not necessary to decide the contention raised by the learned counsel for the petitioner in this revision application as it is conceded before me that after dismissal of the suit the respondent No.1 claimed that they have dismissed the petitioner from service and although this position is not admitted by the applicant but it is not disputed that the applicant is not attending the office of respondent No.1 as their employee. As the circumstances of the case have materially changed learned counsel for the petitioner made a request during the course of hearing of the revision application that he may be permitted to withdraw the suit instituted in the year 1974 with permission to institute a fresh suit in the changed circumstances of the case. Although this prayer is opposed by the learned counsel for the respondent but I think in the circumstances of the case that the respondents are contending that the service of applicant has been terminated and he is no more in the service of respondent No. 1 the only appropriate course open to the petitioner if available under the law is to institute a suit challenging the aforesaid dismissal. I accordingly accept the prayer of the petitioner and permit withdrawal of Suit No. 1312/74 with liberty to the petitioner to institute any other proceedings if still available to him under the law. This Revision Application is accordingly disposed of with no order as to costs.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.