' On 8-11-2002 the respondent No.3 filed a suit against the petitioner and respondents Nos.4 to 12. It was stated in the plaint that the said plaintiff is the owner of the suit property mentioned in the plaint. The defendants in the case tried to interfere and in the year 1994 he filed a suit for peimanent injunction restraining them from the said interference. The plea taken by the defendants was that the plaintiff is not the owner of the property and further that the suit is not maintainable as he had been proved to be in possession. The suit was dismissed. A first appeal was also dismissed. He filed a civil revision wherein, he was allowed to withdraw the suit with permission to file afresh, on 29-10-2002. Thereafter, he stated that he is the owner of the suit property and that with his permission it was being used as Bus Stand and the Town Committee constructed two Latrines. The Bus Stand was then shifted and he remained in possession.
According to him, the possession was taken over after the dismissal of the first suit. With these averments he sought a decree for possession of the suit-land on the basis of his title. The petitioner filed an application under Order VII Rule 11 C.P.C. Stating that the suit is barred by law and the plaint be rejected. The application was resisted. The learned trial Court dismissed the same on 6-4-2004.
A revision filed by the petitioner was dismissed by a learned ADJ, Rajanpur, on 4-1-2005.
2. Learned counsel for the petitioner contends that the order passed by this Court on 29-10-2002 in C.R. No.117 of 2002 has been mis interpretted by the learned ADJ. According to him, a plain reading of the said order would show that this Court never intended to permit the plaintiff to withdraw the said suit with permission to file afresh.
3. I have gone through the copies of the records. The copies of the entire proceedings in the said civil revision have been appended. The civil revision. Came up before the Court on 6-2-2002 when the contention of the learned counsel was noted that he had filed an application for amendment of the plaint but the appellate Court did not decide the same but dismissed the appeal. The records were summoned. On 19-3-2002 a pre-admission notice was issued when Mian Mushtaq Ahmad, Advocate, accepted notice on behalf of the present petitioner. Then the matter came up on 28-10-2002 when this Court proceeded to take up the said amendment application. I may note that the amendment sought was to change the form of the suit into one for .Possession. The application was dismissed and the case was adjourned to the following day i.e. 29-10-2002. On this date following proceedings, ever recorded:-- "Mr. Athar Rehman Khan, Advocate for petitioner. Mian Mushtaq Ahmad, Advocate for respondent ' Learned counsel for -the petitioner submits that under instructions of his client, he wants to withdraw the main civil suit for permanent injunction with permission to file a fresh suit for declaration and possession. Learned counsel for the respondent has no objection.
' Dismissed as withdrawn."
4. Now the learned counsel vehemently urges that there being no express order permitting the withdrawal of the suit with permission to file a fresh suit, the said order cannot be read in the manner done by the learned ADJ.
5. To my mind the said contention' has no force. The only requirement of law is that a prayer must have been made by the plaintiff whether in writing or verbally for the said permission, and then the prayer is to be considered by the Court. The said order would clearly show that a detailed statement was made by the learned counsel for the plaintiff that he wants to withdraw the main civil suit for permanent injunction with permission to file a fresh suit for declaration and possession and the learned counsel present for the opposite: party expressed no objection and this was followed by the order "dismissed as withdrawn." In my able opinion such an order need not be 'expressed and can be implied from the attending circumstances as observed by the Hon'ble Supreme Court of Pakistan in the case of S. Nasir Ali v. Feroze Din Rana and another (1969 SCM R 933). I also draw support from the observations of Mr. Justice Saeeduzzaman Siddiqui (as the Hon'ble Chief Justice then was) in the case of Pakistan Industrial Development Corporation v.
Pakistan through Secretary, Ministry of Finance Islamabad and another (PLD 1984 Kar. 1). The observations appearing at page 6 of the report are as follows:-- "In our view in the absence of an express order by the Court granting permission to file a fresh proceedings while allowing withdrawal under sub-rule (2) of rule 1 of Order XXIII, C.P.C. It will necessarily follow that such a permission has been granted by the Court or otherwise the Court while allowing withdrawal in such a case cannot refuse to grant permission."
' To somewhat similar effect are the observations of the Hon'ble AJ&K Supreme Court in the case of Raja Bashir Ahmad Khan v. Azad Government and another (1998 CLC 213). It was held while relying upon the case of Karim Gul and another v. Shahzad Gul and another (1970 SCM R 141) that the Court can accept or reject both the prayers and that the Court cannot withhold the permission to bring a fresh suit while allowing withdrawal of the suit.
6. In view of the above discussion, it cannot be said that the learned Courts below have acted without jurisdiction while dismissing the said application of the petitioner. The writ petition in accordingly dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.