1 and 3 Adjourned.
2. C.M.A. No,3407 of 2000.--- This is an application under Order VII, Rule 11, C.P.C. Whereby it has been prayed on behalf of the defendant that as the suit is barred under Order XXIII, rule 1, C.P.C. And also the suit is time-barred, it may be, dismissed as such. Another plea has also been taken that the suit is hit by the provisions of section 11 of the C.P.C.
' It is the contention of the learned counsel for the defendant that the earlier Suit viz. No,296 of 1997 was withdrawn unconditionally by the plaintiff vide order, dated ,18-8-2000 without permission to file a fresh suit and consequently the present suit is hit by the provisions of Order XXIII, rule 1(3). For this proposition, he has relied upon Messrs Sindh Engineering (Pvt.) Limited v. OTIS Elevator Company 2000 CLC 1524 as well as Messrs Hindustan Sanitary and Drainage Works v. Shabbir Burhani and others PLD 1992 Kar.
21. Learned counsel however, does not press his objection on the ground of limitation as well as res judicata.
' On the other hand, learned counsel for the plaintiff has submitted that in Suit No,296 of 1997 the plaintiff had prayed for conditional withdrawal of that suit with permission to file a fresh suit since the information regarding the mutation of the property in question had only been received by the plaintiff upon filing of the : written statement by defendants. Learned counsel has further submitted that the said application was filed under Order XXIII, rule 1, C.P.C. And sub-rule 2(b) was inadvertently not added. He has, therefore, submitted that although, vide order, dated 18-8-2000, the application for withdrawal was granted and no mention was made for permission for filing a fresh suit is implicit, since the plaintiff had prayed that he be allowed to file a fresh suit. For this proposition, he has relied upon Muhammad Mansha v. Sabir Ali 1999 SCM R 1782.
I have heard both the learned counsel. In my opinion the provisions of Order XXI, rule 1 sub-rule (2) are quite different from those of- sub-rule. (3) since sub-rules (1) and (2) contemplate that because of some legal or formal defect or on other sufficient grounds the plaintiff wishes not to press the suit in order to file a fresh one he may do so for the purpose of curing such defect. Sub- rule (3) contemplates a withdrawal per se where the plaintiff foregoes his remedy against the defendants altogether. In the present circumstances it, is quite implicit from a bare reading of C.M.A. 6775 of 2000 filed in Suit No, 296 of 1997 that the plaintiff has prayed for permission to file a fresh suit. However, although this application was granted, vide order, dated 18-8-2000, it was not recorded anywhere whether such permission has been given. In my view, therefore, it cannot be said that the Court was not cognizant of the plaintiff's prayer for filing a fresh suit and simply' because this was' missing from the order it cannot be said that such permission was refused. In the circumstances such permission can be implied as the application was granted. Even otherwise, matters are to be adjudicated on merits as law favours this course of action. For all the foregoing reasons this application is rejected.
Application rejected.