' SYED JAMSHED ALI, J.---Judgment dated 6-4-1986 of the learned District Judge, Okara has been assailed in this appeal which arises out of the suit for specific performance of the appellants which has concurrently been dismissed. Muhammad Younus having died during the pendency of this appeal, it was continued by Mohammad Hassan, the appellant, as his legal heir. The facts of the case are briefly noted as under:--
2. On 25-6-1962 Fazal Mohammad deceased now represented by respondents 1 to 6 agreed to sell land measuring 13 Marlas in favour of the appellant and Mohammad Younus his brother for a consideration of Rs.364 and received a sum of Rs.300 as earnest money. A period of six months was contemplated for completion of the transaction. The appellant filed a suit for specific performance on 25-7-1964 which was unconditionally withdrawn on 27-1-1965. However, a fresh suit was filed by the plaintiffs on 28-4-1965. During the pendency of the said suit Fazal Mohammad alienated the disputed land in favour of Mehr Bibi respondent No.7, deceased, now represented by her legal heirs. This suit was decreed on 13-12-1966/ Appeal of Mst. Mehr Bibi was dismissed by the learned first Appellate Court on 29-3-1967. She then approached this Court in R.S.A. No.786 of 1967 which was disposed of on 14-2-1984 with the consent of the parties who agreed to be the framing of an additional issue as to the effect of withdrawal of the first suit by the two plaintiffs. The case was, accordingly, remanded to the learned trial Court which framed the following additional issue.
"2-A. Whether the plaintiffs are precluded from filing the present suit after withdrawal of their previously instituted suit without getting the permission to file a fresh suit?"
3. In support of the objection, respondent No.7 placed on record the statement of the learned counsel for the plaintiffs-appellants (Exh.D.6) and certified copy of the order dated 27-1-1965 dismissing the first suit of the appellants as (Exh. D. 7).
4. Vide judgment and decree dated 20-11-1985 the suit of the appellants was dismissed by the learned trial Court with the finding that it was barred under Order XXIII (1)(3) of the Code of Civil Procedure. The two plaintiffs filed an appeal which was dismissed vide judgment and decree dated 6-4-1986 of the learned District Judge, Okara. The said judgmetits. And decrees have ' been assailed in this appeal.
5. The learned counsel for the appellant submits that the property involved in the suit was evacuee property and as held in , Mohammad Hassan v. Syed Mumtaz Hussain PLD 1965 (W.P.) Lahore 35 the civil Court had no jurisdiction. The judgment was reported in the January part of the PLD of 1965 and was the basis to withdraw the first suit. It was also mentioned by the learned counsel in his statement at the time of withdrawal of the first suit. The submission based on this judgment is that the plaintiffs, while withdrawing the first suit were misled by the said judgment of this Court. He pressed the principle that the act of the Court does not prejudice anyone. He further justified filing of the fresh suit on the basis of the judgment of this Court in Syed Ali Moazzam v. M. A. Effandi and others PLD 1965 (W.P.) Lahore 193 according to which if the parties do not challenge the orders passed by the Settlement and Rehabilitation Authorities the jurisdiction of the civil Court was not excluded.
6. The second limb of his submission was that permission to withdraw the suit will necessarily carry with it the permission to file a fresh suit. In support of this submission reliance was placed on S. Nisar Ali v. Feroze Din Rana and another 1969 SCM R 933; Karim Gul and another v. Shahzad Gul and another 1970 SCM R 141; Moula Bakhsh v. Muhammad Zahid and another PLD 1990 SC 596; Muhammad Mansha and others v. Sabir Ali 1999 SCM R 1782 and Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979.
7. On the other hand the learned counsel for the respondents submits that the suit having' been unconditionally withdrawn, even though under a mistaken belief as to its non-maintainability, the second suit was not maintainable.
8. The submissions made by the learned counsel for the parties have been considered. On 27-1- 1965 Mohammad Younas, one of the plaintiffs, and their learned counsel made the following statement before the learned trial Court:--- {{URDU TEXT}}
9. Based on the said statement the suit was allowed to be withdrawn. The plaintiffs chose to decide the question of jurisdiction of the civil Court in the matter themselves without waiting for the decision in their suit. The judgment in the case of Muhammad Hassan (supra) did not pertain to specific performance of the contract, the plaintiff therein wanted to establish his right of inheritance in respect of evacuee property. 'The said suit was held not to be maintainable and the plaint was ordered to be returned. In the said case the plaintiff could place his grievance before the Settlement and Rehabilitation Authorities. However, in this case, none-else except the civil Court could adjudicate the suit of the appellants for specific performance. Therefore, not only the rule laid down in Muhammad Hassan's case was not attracted the mistake of the plaintiffs and their learned counsel was wanton and reckless. It may be observed that even if a suit is withdrawn under a mistaken belief as to its maintainability, the second suit would be hit by the bar of sub-rule
(3) of rule 1 of Order XXIII of the Code of Civil Procedure unless the permission is granted for filing a fresh suit, on the same cause of action subject of course to law of limitation.
10. As far as the second contention of the learned counsel for the appellant is concerned, none of the judgments cited by him supports the plea that permission to withdraw the suit will necessarily carry with it the permission to file a fresh suit. In the case of S. Nisar Ali (supra) the plaintiff's counsel while making .a statement to withdraw the suit, had also stated that he would bring a fresh suit.
The Honourable Supreme Court observed that omission of the Court to mention grant of permission to bring a fresh suit did not render it incompetent. In the case of Karim Gul and others (supra) the plaintiffs had filed an application to withdraw the suit with permission to bring a fresh suit. The learned trial Court allowed the suit to be withdrawn but refused permission to bring a fresh suit. Similar view was taken in Moula Bakhsh (supra) by following the rule laid down in the case of Karim Gul supra. In the case of Muhammad Mansha and others (supra) the plaintiff was allowed to withdraw the suit with permission to file a fresh suit. The grant of permission to file a fresh suit was agitated before the Honourable Supreme Court but the objection was repelled. In the case of Haji Muhammad Boota and others supra the Honourable Supreme Court had allowed a suit, concurrently dismissed up to the level of this Court, to be withdrawn with permission to bring a fresh suit and in the second round before the Honourable Supreme Court the permission granted to the plaintiff was assailed which was repelled.
11. Perusal of the precedent cases shows that if a plaintiff seeks to withdraw the suit with permission to file a fresh suit, this prayer is indivisible and is required to be disposed of either by rejecting it as a whole or by accepting it as a whole. However, if the Court permits withdrawal of a suit without an express order permitting filing of the fresh suit, it will be deemed to be in-built in the order permitting withdrawal if the permission to file afresh suit was prayed for either in an oral statement before the Court or in a written application. In the absence of any indication in the statement before the Court or the application that the plaintiff was withdrawing the suit with the intention to file a fresh suit, the provision of sub-rule (3) of rule 1 of Order XXIII of the Code of Civil Procedure will operate as an absolute bar for the plaintiff to file a fresh suit on the same cause of action.
12. Before parting with this judgment, I will also like to observe that in this case, the agreement was statedly executed on 25-6-1962 and at least till 1986 when this appeal was filed before this Court a period of 24 years had already elapsed and now when this appeal is being disposed of, the agreement in question is more than 42 years old. Therefore, I do not otherwise consider it just and equitable to consider grant of a decree for specific performance of the said agreement in favour of the appellants.
13. Accordingly, this appeal is dismissed without any order as to costs.