' Brief facts out of which the present revision petition arises are that petitioner filed a suit for declaration against the respondents in the Court of Civil Judge IstClass, Arifwala. Respondents filed written-statement and took preliminary objection and the petitioner had filed a suit against the respondents earlier which was dismissed for non-prosecution. Respondents filed an application before the learned trial Court under Order VII, rule 11, C.P.C., which was accepted by the learned trial Court vide order, dated 14-6-2002. The petitioner being aggrieved filed an appeal before the learned District Judge, Arifwala, who dismissed the same vide judgment, dated 17-3-2003. Hence, the revision petition.
2. Learned counsel of the petitioner submits that earlier suit of the petitioner was dismissed for non-prosecution and was not dismissed on merits, therefore, the second suit filed by the petitioner was competent. He further submits that learned trial Court erred in law to accept the application of the petitioner under Order VII, rule 11, C.P.C. He further submits that respondents have taken preliminary objection in the written-statement, therefore, it is the duty and obligation of the learned trial Court to frame issue on the basis of preliminary objection and after recording the evidence of the parties then case will be decided on merits. He further submits that both the Courts below erred in law to non-suit the petitioner on technical ground.
3. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record.
4. It is an admitted fact that petitioner filed earlier suit qua the same subject-matter and relief before the learned trial Court which was dismissed for non-prosecution. Second suit filed by the petitioner is not maintainable in view of mandatory provisions of Order IX, rule 8, C.P.C. Both the Courts below have decided the case in terms of mandatory provisions of law, therefore, I do not find any infirmity or illegality in the impugned judgments of both the Courts below, same are in accordance with law laid down by the superior Courts in the following judgment:-- ' Muhammad Akbar v. Azad J&K (PLD 1966 Azad J&K. 10)
' In view of what has been discussed above, this revision petition has no merits and the same is dismissed.